
    Case 58—On Motion to Dismiss Appeal for Failure to bole Transcript in Time —
    Sept. 24.
    Beavers, &c., v. Bowen.
    APPEAL FROM HARDIN CIRCUIT COURT.
    Appeal and Error — Computation of Time for Filing Transcript.
    Held: Under Civil Code Prac. see. 738, requiring transcript to be filed twenty days before itbe second term of tbe court of appeals after the granting of an appeal, where the first day of the second term of the court of appeals after the granting of an appeal was September 16, the filing of transcript on August 28th was too late, as the first day of the term must be excluded.
    O. MEARA and MONTGOMERY, for appellants.
    SPRIGG & CHELF and W. H. MARRIOTT, for appellee.
    (No briefs.)
   Opinion of the court by

CHIEF JUSTICE PAYNTER

Dismissing Appeal.

The judgment appealed from was rendered on March 19, 1901, and an appeal was granted by the court below. The transcript was filed August 28, 1901. The present September term of court is the second term after the rendition of tbe judgment, and under section 738, Civil' Code Practice, the transcript should have been filed in the office of the clerk of this court at least twenty days before the first day of the term. ‘The court convened on the 16th day of the present month, and the transcript was filed ■only nineteen days before the first day of the term. To make twenty days, the first day of the term would have to be counted, which can not be done. It must be excluded from the count. It is proper to count the day upon which the transcript was filed, and in excluding the first day of the term it will be seen that it was not filed the requisite time before the first day of the term. The motion to dismiss the appeal must prevail.  