
    Burch &c. v. White.
    December, 1824.
    Appeal — Allowance—Record Mast Sfaow. — Where a judgment has been rendered in a Court of law, and the record omits to state that an appeal was allowed, no evidence can be received at a subsequent term, that the appeal had been, in fact, allowed, but that the clerk had neglected to enter it on the record.
    Seme — Same- Same.-The filing of an appeal bond, with the clerk, mast be in pursuance of an allowance of the appeal, entered on the record.
    White obtained a judgment in the Superior Court of Nelson eounty against Burch, affirming a judgment of the County Court. At 1he subsequent term of the Superior Court, the following entry was made: “On the motion of the appellants by their attorney, and it appearing to the satisfaction of the Court, that at the last term of this Court, when the judgment of the County Court was affirmed, they, the said appellants, prayed an appeal from the said judgment, to the Court of Appeals, which was allowed them, upon their giving bond and security according to law, *which said bond and security was accordingly given and filed in open
    Court, during the term aforesaid; but that the clerk of the Court has omitted to enter, on the records thereof, the appeal so granted; it is ordered that an appeal be now allowed the said appellants from the judgment aforesaid, and that this order be regarded as an order of the last term, when it should have been entered.” The appeal was accordingly brought up to the Court of Appeals, and docketed.
    Wickham, for the appellee,
    moved to dismiss the appeal as improvidently allowed; and
    Johnson, for the appellant,
    opposed the motion.
    December 11.
    
      
      See generally, monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.
      The principal case is cited with approval in Barnes' Case, 92 Va. 799, 23 S. E. Rep. 784.
    
   The PRESIDENT,

delivered the opinion of the Court:

Whether an appeal will lie from any judgment, is a question of law, to be decided by the Court; and the only evidence of what is decided by the Court, is the record. In this case, the orders were read, in which no appeal was allowed, nor is any thing said of the appeal bond. No evidence of any other character than the record, ought to have been received by the Court. The filing of a bond in the office, is no proof that it was received by the Court, or that an appeal had been granted. The omission to enter it by the clerk, cannot be considered a clerical error, until it is shewn by the record, that the appeal was allowed, and the bond received. The case of Bent v. Patten, 1 Rand. 25, is in principle, like this case. The rate of interest, in that case, was adjudged to be matter of law; and (he neglect to enter it, as the Court ought to have adjudged it, was not considered a clerical error. The 108th section of the act of Jeofails, 1 Rev. Code, 512, does not apply. There is nothing in the record to amend by. The filing of the bond with the clerk, was not in pursuance of *any thing in the record, nor warranted by any act of the Court of record.

The appeal is therefore dismissed, as improvidently awarded.  