
    August C. Schnelle, Defendant in Error, v. Samuel J. Devanny, Plaintiff in Error.
    St. Louis Court of Appeals,
    March 26, 1895.
    Practice, Appellate: failure of plaintiff in error to give notice of writ. The failure of a plaintiff in error, without cause, to give notice of the issue of the writ of error in accordance with the statutory requirements will result in the dismissal of the writ, but will not warrant the affirmance of the judgment of the trial court.
    
      Error to'the St. Louis County Circuit Court.—Hon. Budolph Hirzel, Judge.
    Writ dismissed.
    
      John M. Dickson for plaintiff in error.
    
      John R. Myers for defendant in error.
   Rombauer, P. J.

—Section 2290 of the Bevised Statutes provides: “Every person suing out a writ of error shall cause notice thereof in writing to be served on the adverse party or his attorney of record twenty days before the return day of such writ.' If such notice be not served, the writ shall be dismissed, unless good cause for such failure be shown.”

Buie 7 of this court provides: “All notices of writs of error with the acceptance, waiver or return, of service indorsed thereon shall be filed with the clerk of this court, and by him attached to the transcript in the cause, and shall be the only evidence that such notice has been given.”

In the case at bar, a writ of error issued from this court January 28, 1895. The writ was returnable on the first Monday of March, and was returned with the transcript attached. No notice of the writ, of error served on the adverse party is attached to the transcript. The defendant in error moves to dismiss the writ, and for an affirmance of the judgment. No cause for the failure to give notice being shown, the motion is well taken as far as the dismissal of the writ is concerned. -This court, however, has no power to affirm a judgment for failure to prosecute a writ of error. Section 2252 of the Revised Statutes applies to appeals only, and not to writs of error.

All the judges concurring, the writ of error is dismissed.  