Proctor v. Jeffery

delivered the opinion of the court.

This is a motion to dismiss an appeal on the grounds that the abstract does not contain any assignments of error, and that the bill of exceptions is insufficient to authorize an investigation of any questions to be reexamined. The appellants’ counsel, denying that the bill of exceptions is inadquate, moves for leave to file an amended abstract setting forth assignments of error.

1, 2. When by the failure of a party to give within the limited time a proper notice of appeal, to file an undertaking therefor, or to send up a transcript thereon, a lack of jurisdiction is disclosed, the appeal must necessarily be dismissed. An assignment of errors in an abstract though convenient to a speedy examination of the questions undertaken to be reviewed, is not now made by statute essential to a transfer of a cause to the Supreme Court. It has been the practice, when an assignment of errors was inadvertently omitted, to permit, on proper showing, a typewritten statement of the errors relied upon to be inserted in the abstract after it was filed.

3. In the case at bar, the appellants being the defendants can, upon the filing of a mere transcript, challenge the sufficiency of the complaint to state facts adequate to constitute a cause of action, without filing a bill of exceptions.

*153The motion to dismiss the appeal should be denied and leave granted to file an amended abstract which has been tendered, and it is so ordered.

Motion Denied.

Dismissed as per stipulation May 11,1915.