
    Crafts & Co. vs. Stockton & Bumpas.
    Where an appeal is taken from the judgment of the county court to ihe circuit court, the appellant must file the transcript fifteen days before the commencement of the circuit court, otherwise the judgment, on motion, will be affirmed.
    It is the duty of the appellant, and not the clerk of the county court, to apply to the clerk of the county court for the transcript.
    Where affidavits were made, showing that the clerk of the circuit court had applied in time to the clerk of the county court for a transcript, which was refused by the clerk, and thereupon a certiorari was moved for: Held, that the judgment of the circuit court refusing the certiorari and affirming the judgment of the county court, was correct.
    This action originated before a justice of the peace, and was taken thence by appeal to the county court of Lawrence. At the January term, 1835, of that court, the case was tried, and judgment was rendered in favor of the defendants. The plaintiffs prayed an appeal, which was granted. The transcript of the record was not filed in the circuit court until the first day of the term of that court. The defendant moved the court for an affirmance of the judgment below, because the transcript was not brought up in time; whilst this motion was pending, the plaintiffs offered affidavits, shewing that the transcript had been applied for in time, by the clerk of the circuit court, but that the clerk of the county court had refused to send it up; upon these affidavits, the plaintiffs moved the court to have the cause placed on the reference docket; but the motion was overruled, and the judgment below was affirmed. The plaintiffs then filed their petition for a certiorari, and upon the petition and affidavits, showing that the transcript had been applied for in time, and had been refused, and that the plaintiffs have a good cause of action, they moved the court to set aside the judgment of affirmance, and to grant the certiorari, but this motion was overruled.
    
      Frierson,for plaintiff in error.
    1. The circuit court erred in affirming'the judgment of the county court. Although the transcript was not filed within fifteen days before the setting of the circuit court, yet on the 1st day of the term, the plaintiff filed the record, and showed by affidavits, that the failure to file the transcript in proper time was not occassioned by the neglect of the plaintiffs, the court ought. to have overruled •the motion for affirmance. The case of Craddick vs. Pritchett, Peck’s R. 22, is in point. •
    2." The court erred in refusing to set aside the judgment of affirmance upon the affidavits, and granting the certiorari, as the petition and affidavits show sufficient merits for a certiorari.
    
    For the defendants in error, it was insisted, that the act of 1794, ch. sec 66, was peremptory in its terms, and without any exception, and that it would be a virtual repeal •of the statute, not to affirm the judgment.
   CatRON, Ch. J.

delivered the opinion of the court.

In the county court, there was a verdict and judgment for the 'defendants below, Stockton & Bumpass, and the plaintiffs appealed to the circuit court, but failed to bring up the record within fifteen days; and on the first day of the circuit court the record was filed, and on motion, the judgment affirmed on behalf of the appellees. This is the express .injunction of the court law of 1794, sec. 66: the record must be filed, so' that the witnesses may be summoned before the term of the circuit court commences. In this case, affidavits were made by the attorney of the plaintiffs, and by the clerk of the circuit court, alleging that the clerk applied to the clerk of the county court for the record, fifteen days before the commencement of the term, but who refused to deliver the record to the circuit court clerk, and a certiorari was moved for. The appellant, or his attorney, alone bad the legal right to call for the record; , ,. , J’ , , “ , , , and although the usual mode is lor the county court clerk to deliver the appeals to the clerk of the circuit court, jet the latter has no legal right to demand the record, without express authority to this effect from the appellant, which authority does not appear iff this case, and hence the judgment must be affirmed.

Judgment affirmed.  