
    Case 17 — MOTION TO DISMISS APPEAL
    Oct. 5.
    City of Bowling Green v. Elrod.
    APPEAL PROM WARREN COMMON PLEAS COURT.'
    1. The lower court has no power to grant an appeal after the expiration of the term at which the judgment was rendered.
    2. Ip an appeal has been granted by the lower court, and THE APPELLANT PAILS TO PILE HIS ASSIGNMENT OP ERRORS AND schedule within ninety days, or fails to file the transcript in the office of the clerk of the Court of Appeals at least twenty days before the first day of the second term of said court, after the granting of the appeal, the appeal will be dismissed by the Court of Appeals, on motion of appellee. (Civil Code, secs. 737, 738, 740.)
    3. Ip THE APPELLANT ABANDONS THE APPEAL GRANTED BY THE LOWER court, by failing to file his assignment of errors and schedule, or by failing to file the transcript in the office of the clerk of the Court of Appeals, within the time prescribed by the Code, he may still obtain an appeal from the clerk of the Court of Appeals, by filing the transcript and his assignment of errors in his office, within the time prescribed by the Code. *
    
      But if the appellant abandons his appeal after superseding the judgment in the lower court, the appellee may, on motion in the Court of Appeals, have his appeal dismissed with damages.
    4. The dismissal oe the appeal granted by the lower court does not bar the right to obtain an appeal from the clerk of the Court of Appeals within the time prescribed by the Code.
    5. When an appeal is granted by the clerk oe the Court of Appeals, a summons should be issued against the appellee, or a warning-order, if he is a non-resident.
    B. E. PROCTOR and J. M. HINES for appellant.
    HALSELL & MITCHELL for appellee.
   CHIEF JUSTICE PRYOR

delivered the opinion of the court.

An appeal may be granted to this court at any time within two years after the right to an appeal first accrued; persons laboring under certain disabilities mentioned in section 745 of the Code may appeal within one year after these disabilities are removed, although the two years may have elapsed. The appeal may be granted by the court rendering the judgment during the term at which it is rendered, or by the clerk of this court on application of either party or his privy, upon filing in the office of said clerk a copy of the judgment from which he appeals. (Sec. 774, Civil Code.) The court below has no power to grant an appeal after the expiration of the time at which the judgment was rendered; and if an appeal has been granted by the lower court in proper time, and the appellant fails to bring the case up, or to file his assignment of errors and schedule within the ninety days, and his appeal is dismissed, he may still bring it to this court, at any time within two years from the time he could have appealed, by applying to the clerk of this court, as provided by section 734.

The dismissal of the appeal granted below does not bar the right to obtain an appeal from the clerk of this court. The record in this case shows that an appeal was granted by the clerk of this court, and a summons issued; and if a supersedeas had been issued by reason of the «appeal below, the bond on which it is based' must have been executed before the clerk of the court rendering the judgment, and an abandonment of that appeal entitles the appellee, upon motion in this court, to have the supersedeas discharged with damages. Where the appeal has been granted by the clerk of this court, the appellant, if the appellee is summoned or enters his appearance, if a feme covert, or if free from disability, may order a part of the record or a transcript of the entire record. (Subsec. 5 of sec. 737.) In this case it appears that the entire transcript was ordered.

Although the appeal granted below was not filed, an appeal may be granted by the clerk of this court from the same judgment at any time within two years after the right to an appeal first accrued. Motion to dismiss overruled.  