#### Shewey vs. Manning and another.

An appeal under the act of 1860 (chap. 264) will be dismissed by the court, of its own motion, where no notice of appeal or undertaking given thereon has been transmitted by the clerk of the court below, and where no certificate of such clerk is annexed to the papers, certifying that they are the original papers in the case or copies of them, and that they are transmitted to this court pursuant to an appeal.

APPEAL from the County Court of *Grant*County.

The case is stated in the opinion of the court.

*Mills & McKee*moved to dismiss the appeal.

*Charles*Dunn, *contra*

December 11

*By the Court,*

Dixon, C. J.

The statute (sec. 5, chap. 264, Laws of 1860) provides that, upon an appeal being perfected in the manner therein prescribed, the clerk of the court from which the appeal is taken, shall, at the expense of the appellant, forthwith transmit to this court, if the appeal is from a judgment, the judgment roll; that he shall also, in all cases, transmit the notice of appeal and the undertaking *449given thereon; and that he shall. annex to the papers so transmitted a certificate under his hand and the seal of court from .which the appeal is taken, certifying that they are the original papers, or copies, as the case may he, and that they are transmitted to this court pursuant to such appeal. The statute (section 35, chap. 132, R. S.) likewise declares that the judgment roll, except in cases where there shall have been been no answer, shall consist of the summons, pleadings, or copies thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, exceptions, case, and all orders and papers in any way involving the merits and necessarily affecting the judgment, all of which shall be attached together and filed by the clerk. An examination of the files in this case shows that no notice of appeal or undertaking has been transmitted, and that no certificate is annexed to the papers which do appear, certifying that they are the original papers in the cause, or copies thereof, or that they are transmitted to this court pursuant to any appeal whatever. How or why these papers are sent here cannot be ascertained from an inspection of them. Among them is a bundle marked “Judgment Roll,” containing what purport to be the summons, pleadings, judgment and some other papers. There is also another bundle, indorsed “ Bill of Exceptions,” which is in no way connected with the roll, and was never filed in the court below. It appears from an affidavit of the clerk of that court, annexed to the papers upon which the respondent moves to dismiss the appeal, that it was never presented to him for that purpose, and that the papers in the cause were delivered by him to the attorney of the appellants for the purpose of taking an appeal, and not afterwards returned. The respondent was prevented from bringing forward his motion before the cause was reached in its order upon the calendar and submitted by the appellants; but since it is so apparent that there is no case here upon which we can act and that we must dismiss the proceeding upon our own motion, he has lost nothing by the delay. See *Best vs. Young,*6 Wis., 67.

Appeal dismissed.