Opinion
Submitted November 24, 1884. Decided December 15, 1884.
Motions to vacate a supersedeas, and other motions of that kind, made before the record is printed, must be accompanied by a statement of the facts on which they rest, agreed to by the parties, or supported by printed copies of so much of the record as will enable the court to act understandingly, without reference to the transcript on file.
Mr. J.H. Davidson for the motion.
Mr. Edward G. Rogers opposing.
This was a motion to vacate a supersedeas.
Neither the record in this case, nor the part thereof on which this motion depends, has been printed, and the appellees have neglected to state in their motion papers the facts as presented by the transcript on which they rely. An affidavit has been filed to the effect that the appellees were not served with a citation, nor with a notice of an application for the allowance of an appeal, until after the expiration of sixty days, Sundays exclusive, from the time of the rendition of the decree appealed from. In the same affidavit it is stated, however, that the proctor of the appellees was informed that an appeal bond had been presented to the Circuit Court for approval within the sixty days. It is also stated that on the 10th of January, 1884, an order allowing an appeal was entered nunc pro tunc as of the date of the presentation of the bond. An affidavit filed by the appellants shows, that, on the day the bond was presented to the Circuit Court, it was approved, allowed and filed in the cause. As upon this motion it rests upon the appellees to show that the bond was not accepted in time, and that has not been done, the motion to vacate the supersedeas is denied.
In this connection we take occasion to say, that motions of this kind, made before the record is printed, must be accompanied by a statement of the facts on which they rest, agreed to by the parties, or supported by printed copies of so much of the record as will enable us to act understandingly, without reference to the transcript on file.
Motion denied.