
    Case 28 — Petition to Vacate and Modify Judgment Dismissing Appeal —
    March 29.
    Sandy River Cannel Coal Co. v. Caudell.
    APPEAL FROM JOHNSON CIRCUIT COURT.
    Petition Filed by Appellant to Vacate the Judgment of this Court Rendered on April 27, 1899, Dismissing the Appeal and Awarding Damages Thereon.
    Motion and Petition Overruled.
    Held: When it appears of record, that the time has passed, within which the transcript is required to be filed, and no extension of time has been granted, the appeal will be dismissed on motion without notice.
    WALTER S. HARKINS for appellant.
    J. W. M. STEWART for appellee.
   Opinion of the court by

JUDGE HAZELRIGG

overruling petition AND MOTION.

When the appellant fails, to file the transcript “twenty days before the first day of the second term of the court next after the granting of the appeal, unless the court extend the time, as for good cause shown the court may do.’’ (Civ. Code, section 738), the “appeal shall be dismissed” (section 740). When it appears of record that the time has passed within which the transcript is (required to be filed, and no extension of time has been granted, the appeal will be dismissed, on motion, without notice. In this case the correspondence between counsel, which apparently misled counsel for appellant to believe that no motion to dismiss would be made, occurred after the time had expired for filing the record, and also after the extended time, had expired. We must adhere to the rule so long established, that application for extension of time to file transcripts must be made before, and not after, the time has expired, under the provisions of section 738 of the Code.  