
    No. 2239.
    Cummings v. Wingo.
    April Term, 1888.
    May 28, 1888.
    
      S. J. Simpson, for the petition.
   This was a petition for a rehearing of an order refusing to reinstate on the docket an appeal dismissed by the clerk for a failure to file return within the time prescribed by rule 1, the appellant having mistakenly supposed that the “Case” for appeal was a part of the record constituting the return. See Tribble v. Poore, ante, 565. This court, in refusing the petition, declares that the only way in which appellant can obtain relief is by motion based upon affidavits, copies of which should be duly served upon the opposite party, with the notice of such motion, at least eight days before the day on which such motion may be heard. Act of 1880, § 2, 17 Stat., 368 ; Code, § 349 ; Rule XIX. of Supreme Gourt.

' Petition dismissed with leave to appellant to apply as above for relief from his omission to file the return within the prescribed time, provided such application be made in time, if successful, to have the appeal heard at the next term of this court. Opinion filed

per curiam  