Moore

A motion is made to dismiss the appeal upon the ground, first, that no assignment of errors was filed in the court below; and, second, that the paper which appears in the record as an assignment of errors does not comply with the requirements of rule 11 of this court. An assignment of errors is found in the record, but there is no indorsement of a file mark thereon by the clerk. It begins with the recital, however, that the appellant “presents this assignment of- errors together with his petition for appeal.” The last paragraph of the petition for appeal recites that the appellant “doth herewith present and file his assignment of errors together with the bond on appeal.” The petition was filed on January 27, 1902, and on the same date an order was made that the appeal be allowed as prayed for. From these facts it is sufficiently evident that the assignment of errors and the petition for appeal were presented to the court on the same date, and were lodged with the clerk thereof. In the absence of a showing to the contrary, it will be presumed that such was the case. The failure of the clerk to indorse the assignment of errors as filed cannot defeat the appellant’s appeal. Mutual…