
    Flanagan v. McClarty and others.
    It has been the practice of the court, where a record has been filed before the time required bv law for tiling it, to permit the party, plaintiff in error or appellant, on motion, to withdraw it and to file another if ho wis-hed to do so at any time before the expiration of the time within which it is required by law to be filed.
    "Where a transcript was filed on the 8th of April, and the errors appeared to have been assigned on the I2lh of the same month, and there was an indorsement as follows: “ Recommitted “to my custody, and a copy of ihe assignment of errors attached and re-delivered to appellant’s counsel, this 12th day of April, A. D. 1851,” signed by the clerk of the court below, and it did not appear that the appellant had leave to withdraw the transcript nor when it was returned: Meld, That the appeal be dismissed for want of an assignment of errors.
    Appeal from Buslc. In this case the record was filed in this court on the Stli day of April, 1851. The errors appeared to have been assigned in the court beiow on the 12th day of the same month, and were appended to tiie record on a separate sheet.
    There was an indorsement in the following words: “Beeommitted to my “ custody, and a copy of the assignment of errors attached and redelivered “ to appellant’s counsel, this 12th day of April, A. D. 1851.
    “[Signed,] JOHN P. GBIGSBY, O. D. C. B. C.”
    The appellee moved to dismiss the appeal for want of an assignment of errors.
    
      W. B. Turner, for appellant.
   Lipscomb, J.

The indorsement, though not under the seal of the court, would go to show that, in fact, the record, after it had been filed in this court, was returned to the office of the clerk, from whence it had been taken for the purpose of having tiie errors assigned in the office and making them a part of tiie record before'it was sent up again.

It has been the practice of the court, where a record has been filed before the time required by law for filing it, to permit the party, plaintiff in error or appellant, on motiou, to withdraw it and to file another, if he wished to do so, .it any time before the expiration of the time within which it is required by law co be filed.

In this case it does not appear that the record was withdrawn by leave of the court, nor that it was afterwards filed within the time required by law. The only record of its being filed is of a date before the assignment of errors. The statute is explicit in requiring the errors to be assigned in the clerk’s office before taking out the transcript, and a copy of the assignment shall be attached to and form a part of the record. (Hart. Dig., art. 2940.)

If we could presume that the record in this case had been by leave of the court for the purpose of making the assignment of errors and attaching them to the record in the office of the clerk of the court, below, yet we have no evidence that the record was again filed before the district to which it belongs had been taken up in this eom*t. And it is required by law to.be filed before the day on which the district it belongs to is taken up. The motion to dismiss is sustained.

Appeal dismissed.  