
    Jonathan Smith et al. vs. The Union Bank of Tennessee.
    After an appeal has been dismissed, because of the negligence of the appellant in filing his record, he cannot afterwards sue out a writ of error; the rule is different where the appeal is dismissed without the fault of the appellant.
    In error from the superior court of chancery; Hon. Stephen Cocke, chancellor.
    The defendants in error entered a motion to dismiss the writ of error in this case, because an appeal to a previous term had been dismissed.
    
      Tarpley, for motion.
   Per curiam.

A motion is made to dismiss the writ of error by defendants in error, because an appeal to this court was dismissed at January term, 1849, the appellant having failed to prosecute the appeal by filing the record.

The statute clearly provides for a case like this, or it provides for no case at all, and is a dead letter. It declares that After the dismission of an appeal, writ of error, or supersedeas, in the supreme court, no appeal, writ of error, or supersedeas, shall be allowed.”

This statute has been construed not to apply in cases where the appeal was dismissed without the fault of the appellant, and that in such cases he will be entitled to his writ of error, although his appeal may have beeri dismissed. Bull v. Harrell, 7 How. 9.

The plaintiff in this case does not come within the rule. The final decree was pronounced on the 10th of June, 1848. On the 17th of the same month, an appeal was prayed and allowed, on appellants entering into bond with security to be approved by the chancellor within thirty days. The appeal só taken was returnable to the November term, 1848, of this court, and it was-the duty of the appellants to have filed the record on the first day of that term; this was not done. At the January term, 1S49, of this court, to wit, on the 10th of January; the appellees produced a certificate from the clerk of the superior court of chancery of the prayer and allowance of the appeal, and moved to have the appeal dismissed, which was sustained, because the appellants did not file the record. This appears by the record before us. Not only then did the appellants fail to file the record at the first term, but a similar failure was made at the second term. And even after the case was dismissed, no effort was made to have the order of dismissal set aside by a showing that the party was not in default. After the adjournment of this court, however, the writ of error was obtained. We cannot countenance this negligence, and permit the parties thus to prolong litigation, and acquire delay by their own laches.

Motion sustained.  