
    No. 2338.
    Swygert v. Swygert.
    November Term, 1888.
    January 4, 1889.
    
      W. S. Monteith, for motion.
    
      A. 8. Douglass, contra.
   Per Curiam,

This was a motion by the plaintiffs, appellants, to restore to the docket the appeal in this case dismissed by the clerk under rule 1, on the grounds of surprise, mistake, inadvertence, and excusable neglect. Held, that rule 2 prescribes what shall constitute the return, and rule 1 requires that the same shall be filed in forty days after the completion of the record constituting the same.. The parties may waive these rules and agree on a case.. Such was done in this case, with an agreement that this case should be filed in the office of the clerk of the Supreme Court by the 15th November. The appellants, finding that they could not do this, asked for further time, which, however, the respondents refused to grant. The appellants should have then filed the return, as required by rule 1, which they could have done. This they failed to do. The agreement was no longer binding, and. the respondents were entitled to have the appeal dismissed under - rule 1. The clerk was not in error in dismissing the appeal. Motion refused,  