
    No. 2728.
    Aultman v. Utsey.
    November Term, 1890.
    Order filed January 9, 1891.
   This was a motion to dismiss an appeal on account of appellant’s failure to file the agreed “Case” with the clerk of the Circuit Court within ten days after the case had been agreed upon, as required by rule 49. It appeared that appellant’s attorney did hand the agreed case to such clerk within time, and received from him a copy, which the clerk certified to be a true copy of the original then on file in his office. Such copy was sent to the clerk of the Supreme Court, and the original was then borrowed for the use of the printer, and was inadvertently not returned to the clerk of the Circuit Court until about two months afterwards, when he marked it filed, having omitted to do so before.

This court, in refusing the motion, said :

The facts are undisputed. The appellant’s attorneys in two days after the agreement of the case between appellant and respondent’s attorneys, carried the case to the clerk’s office for the purpose of filing the same and left it there, supposing it had been marked filed. The appellant’s attorneys certainly did their duty in the premises, and were not in default. As far as they are concerned, the “Case” was practically filed. Whether the clerk violated his duty in not marking the “Case” filed, or in allowing the “Case” to be taken from his office, is not in question now. The ease of Sternberger v. McSween (14 S. C., 36), cited by respondent’s attorneys, does not apply. The paper in that case was an agricultural lien, which was not required to be spread upon the records, and therefore should have been left in the clerk’s office to advertise purchasers and creditors what property was covered by the lien. The motion is dismissed.

Gfraydon $ Gfraydon, for the motion. Benet $ Oason, contra.  