
    Charleston.
    Sydenstriker vs. Beard et al.
    
    January Term, 1871.
    An appeal is terminated by operation of law, sec. 12, chap. 135, Code of West Virginia, when the appellant fails to file the record with the clerk of this court before the commencement of the second term after the appeal is perfected.
    No record having been furnished in this ease, the details cannot be given.
   Maxwell, J.

A motion is made by the appellee to dismiss this appeal, because the record has not been filed by the appellant with th§ clerk of this court, before the commencement of the second term of this court, held next after the appeal was perfected, as required by the 12th section of chapter 135 of the Code, page 641. The section provides that, if the appellant fails to file the record with the clerk before the commencement of the second term after the appeal is perfected, he shall be deemed to have abandoned his appeal, unless this court, for good cause shown, allow the .same to be proceeded with.

It is alleged by the counsel for the appellee, and stated by our clerk to be true, that no record of the appeal in this cause has been filed with him, but the counsel for the appel-lee has brought into this court a copy of such record, from which it appears that the appeal was perfected before the commencement of the last term of this court.

The appeal, therefore, terminated by operation of law, on the day before the commencement of the present term of this court. This court cannot now dismiss the appeal or strike it from its docket, because it is not upon the docket, and no longer exists, either in law or fact.

It is suggested that the clerk of the court below, without some order from this court, cannot issue execution on the judgment. It would be the duty of the clerk of the circuit court to issue execution, on being requested by the plaintiff, on any satisfactory evidence that the appeal is abandoned, and especially on the receipt of the official certificate of the clerk of this court, that the record was not filed with him by the appellant, as required by law.

For the foregoing reasons, the motion is overruled.

The other judges concurred.

Motion overruled.  