Opinion
No. 7196.
November 16, 1933.
Appeal from the District Court of the United States for the Northern District of Texas; James Clifton Wilson, Judge.
Proceeding between Ed. R. Mayer and Clinton G. Hickey and others. From an adverse decree, the first-named party appeals, and the other parties file a motion to dismiss the appeal.
Appeal dismissed.
George S. McCarthy, of Amarillo, Tex., for appellant.
E.H. Foster, of Amarillo, Tex., for appellees.
Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.
The appeal unconditionally allowed on November 25, 1932, was not void because no cost bond was fixed or given. The supersedeas bond was refused approval and the supersedeas failed. The District Court, however, could not at a subsequent term dismiss the appeal by vacating its order of allowance thereof. But no record has been filed here, though the time therefor has long since elapsed. The alleged refusal of the clerk to deliver it is not a good excuse, because steps might have been taken to compel him. It appears that the appellant has under sanction of the District Court recognized the decree appealed from and given security for its payment and obtained time for six months in which to pay it. We do not think this belated attempt to perfect the appeal merits a waiver by this court of its rule touching the time for filing the record on appeal.
The motions of the appellant are denied, and that of the appellees to dismiss the appeal is granted.