The judgment of the court was pronounced by

The appellees have moved to dismiss this appeal, on the ground of the record of appeal not having been filed in due time.

The judgment was signed on the 6th of August, 1849, and on the same day an order was made, granting the appeal to the appellant, who was liquidator of the Clinton and Port Hudson Railroad Company, returnable on the 2d Monday of February then next ensuing. A bond was filed by the appellant on the 24th of August, 1849. The record is not filed in this court until the 6th of January, 1851. The record thus not having been filed until nearly a year after the return day, it is urged by the counsel for the appellee, that under the repeated decisions of this court and of our predecessors that the appeal must be dismissed. It is urged, that this case presents an exception to the general rule, inas*271much as the appellant resigned his office as liquidator in December, 1849, and no successor was appointed until April or May, 1850. These facts are supported by affidavit, and are not contested. The liquidator of this company was appointed by the State; and the affidavit contains no averment of any diligence on the part of any one in having the vacancy filled, or in relation to the bringing up of the appeal.

The attorney of the liquidator, or any party in interest, could have brought up and filed the record, and the appeal would not have been dismissed for the want of a nominal party, unless the party had been in fault in having had the case left in such a condition. The authorities cited by counsel fully sustain his position.

The appeal is therefore dismissed, with costs.