OPINION ON MOTION TO DISMISS.
Lee, J.motion to ¿us-This cause is first presented to us on motion to dismiss. The territory, by E. L. Bartlett, solicitor general, produces the record in this cause, and moves the court to dismiss the appeal from the judgment of the court below, upon the grounds that said appellant has failed to file a transcript of the record and proceedings in this cause within ten days before the first day of the present term of this court, though appellant filed said record with the clerk on the first day of the term; that it is a common law action, and should have been brought into this court by a writ of error. Section 2469 of the Compiled Laws provides that in all cases of final judgment renclereci upon an indictment an appeal to the supreme court shall be allowed if appealed from during the term at which said indictment was rendered. Section 2476 provides that when an appeal shall be taken which operates as a stay of proceedings it shall be the duty of the clerk of the district court to make out a transcript of the record of the cause, and to certify and return the same to the office of the clerk of the supreme court without delay. Section 2477 provides that when an appeal does not operate as a stay of proceedings, such transcript shall be made out, ratified, and returned on application of the appellant. It will be noticed that when an appeal operates as a stay of proceedings it becomes the duty of the clerk of the district court without delay to make out the transcript, and forward the same to the clerk of the supreme court. In cases where the appeal does not operate as a stay of proceedings the transcript is not made out and forwarded to the supreme court unless an application for the same is made by the appellant. This case being one where the appeal operates as a stay of proceedings, it was the duty of the district clerk, without any application or motion on the part of the appellant, to send a transcript of the record, as it appeared in his office, to the clerk of the supreme court; and his failure to do so in the ten days before the commencement of the term of the supreme court to which it would be returnable should not visit upon the appellant the consequence of a dismissal of his appeal. This view is fully sustained under statutes substantially the same as ours, and in the case of State v. Pratt, 20 Iowa, 268, that court held that, though the appellant failed to file the transcript, the state might file the same, and it would be the duty of the supreme court to examine the record, and upon it to render such judgment as the law might demand; the defendant in that state, as here, not being required to assign or join in error. Section 2189 of the Compiled Laws was not intended to, and does not, apply to appeals in criminal cases; nor does the act of the legislature of 1891, in regard to appeals in equity cases and writs of error in common law cases, have any application to appeals in criminal cases. The motion to dismiss the appeal will be overruled.