
    Case 13—MOTION TO DISMISS APPEAL
    January 23.
    Harpending’s ex’r v. Daniel.
    APPEAL FROM CALDWELL CIR'CUIT COURT.
    Section 737 of tlie Civil Code, in'regard to filing assignment of errors within ninety days after the appeal is granted, applies alone to appeals granted by the Court below.
    Messrs. MARBLE & SON and R. W. WOOLLEY for appellant.
    G. W. DUVALL for appellee. - ■ '
   CHIEF JUSTICE PRYOR

delivered ti-ie opinion of the court.

This is a motion to dismiss an appeal granted by the clerk of this Court for the want of an assignment of errors made and filed at the time the appeal was taken.

After the motion to dismiss was made, the appellant tendered and offered to file his assignment of errors. Section 737, Civil Code, makes the failure to file a schedule and assignment of errors within “ninety days after granting the appeal cause for the dismissal of the appeal. This provision applies alone to appeals granted by the Court below, and does not, therefore, affect appeals sued out before the clerk of this Court. _ v

Where an appeal is granted by the clerk of this Court, an assignment of errors should be made at the time the appeal is granted, as the clerk has no power to docket the case untiL this is done. Section 740 provides that the clerk shall not enter the case on the docket until this provision of the Code is complied with. The proper 'step to be taken in a case like this is by motion to strike the case from the docket;; but while this motion will prevail, if no errors have been assigned, the party may still assign his errors, and when this is done the case will be docketed.

No motion to strike from the docket has been made, and as the appellant has offered to file his assignment of errors, we see no reason why they should not be made part of the record. „

The case will not stand for hearing at this term, unless by consent, as the appellant is in default. The assignment of errors may be filed.  