
    Breed v. First National Bank of Central.
    1. When an appeal is made thirty days prior to the first day of the next ensuing term of the supreme court, and the plaintiff fails to file an authenticated transcript of the record of the judgment appealed from by or before the third day of the term o£ this court, the appeal will be dismissed.
    2. Without a bond there can be no perfected appeal, and until the day fixed on or before which the bond is to be filed, the appellant cannot be said to be iu default. •
    3. Where the appellant was allowed seventy-five days within which to make his appeal, this court will not entertain a motion by the appellee to docket and dismiss the appeal before the expiration of that time, although more than thirty days may have elapsed from the time of praying the appeal and the first day of the next ensuing term of this court.
    
      Appeal from, District Court of Gilpin County.
    
    Mr. James B. Beleord now moved to docket this cause and dismiss tlie appeal.
    Messrs. H. M. & W. Teller, contra.
    
   Thatcher, C. J.

The motion to docket this cause and dismiss the appeal presents the question as to what is meant by “making an appeal,” within the intent of section 42, chapter 70, of the Revised Statutes. On the 27th day of September, A. D. 1877, judgment was entered in this cause in the court below, an appeal was prayed and allowed, and seventy-five days limited within which to file a bill of exceptions and appeal bond. It is contended by the appellee that as the appeal was prayed and allowed more than thirty days before the first day of this term, that the appeal was returnable to this term; and that it was not competent for the court below to fix a time beyond the first day of this term within which the appellant might file his appeal bond and bill of exceptions. Section 21 of the same chapter empowers the judge to sign and seal the bill of exceptions at any time after the term at which the judgment was rendered, that might be fixed by the court. Section 41 of the same chapter provides that the party praying the appeal shall, by himself or agent, or attorney, give and file a bond in the office of the clerk of the district court, within the time limited by the court. If the appeal was made thirty days prior to the first day of this term, the appellant having failed to file an authenticated copy of the record of the judgment appealed from, by or before the third day of this term, as required by said section 42, it must be dismissed.

In our opinion the praying of an appeal is but a preliminary step — the first in a series of acts that are necessary to complete an appeal.

The praynig of an appeal, the allowance thereof, and the filing of the appeal bond are separate and distinct acts, each of which under the statute is as essential as the others to the perfection of the appeal. Whether if the time limited by the court within which to file an appeal bond below should expire more than thirty days before the first day of the next term of this court, and the time fixed within which to file the bill of exceptions should not expire until a day less than thirty days before the first day of such term, the appeal would be returnable to such term, or the term succeeding, we need not now determine. An appeal may be made without a bill of exceptions. The case may be brought up on the record proper. But without a bond there can be no perfected appeal, and until the day fixed on or before which the bond is required to be filed, the appellant cannot be said to be in default in the performance of any act necessary to the making of the appeal.

In the case before us the time fixed for the filing of the bond and the bill of exceptions is the same, until the time, seventy-five days, limited by the court within which to file the appeal bond, has passed ; it cannot be determined whether the appeal will ever be perfected, made in the sense of the statute.

The motion to docket the cause and dismiss the appeal must be denied. As the cause was put on the docket for the purpose of this motion, it is ordered stricken therefrom.

Motion denied.  