Time of Docketing Appeal — Motion to dismiss — Accepting Service of Case no Waiver of Right to Dismiss.
Where a judgment was rendered in a Superior Court at February Term, 1892, and appellee agreed that appellant might have "thirty days to perfect appeal," and upon the "case" there was an indorsement as follows, "Service accepted 31 December 1892," and the appeal was docketed in March, 1893: Held, that the indorsement of acceptance of service of the case does not, in itself, constitute a waiver of appellee's right to have the appeal dismissed because not docketed within the prescribed time.
BURWELL, J.
The judgment was rendered at February Term, 1892, of the Superior Court. The appeal was docketed in this Court 13 March, 1893. It appears in the record that the appellee agreed that the appellant might have "thirty days to perfect appeal." Upon "the case" is this indorsement: "Service accepted 31 December, 1892", and this is signed by counsel who represented plaintiffs in the court below.
We do not think this indorsement, standing alone, constitutes in any degree a waiver of the appellee's right to insist that the appeal shall be dismissed because not docketed here within the prescribed time. His motion to dismiss must be allowed.
Appeal dismissed.
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