
    No. 3586.
    Jacobs v. Gilreath,
    April Term, 1895.
    Motion to reinstate appeal, upon which the following ruling and order was made May 16, 1895,
   Per Curiam.

This is a motion to reinstate an appeal which has been dismissed by the cleric of this court, under Rule 1, for failure to file the return within the prescribed time. The clerk was right on the showing made before him, and we do not understand that this is questioned; but this motion is now made to reinstate the appeal so dismissed, on the ground that the failure to file the return in proper time, under the agreement between counsel, resulted from the loss of one of the papers — masteris copy of the testimony — which, by such agreement, was to constitute a part of the “Agreed Case.”

We think appellant was not in default. He expected, and had a right to expect, that he would find this paper in the clerk’s office. The respondent contends that the statement as to the loss made by the clerk is not competent, because not sworn to by the clerk, but only by Mr. Irvine, to whom such statement was made; but we think Mr. Irvine’s affidavit is competent to show that application was made by him to the proper custodian, and that he failed to get the paper on such application.

Our conclusion is, that the agreement was not carried out because of appellant’s failure to procure copy of the testimony from the proper officer when demanded. Under these circumstances, we are willing to let appellant supply this missing part of the record, if he can do so. Therefore, we will permit appellant, within twenty days from this date, to serve a new “Case,” the practice prescribed by the rules as to service, amendments, and settlement being observed. If, however, respondent is willing to have the appellant heard on the “Case” as now prepared and printed, we will accord to him that privilege, and let the case go to the foot of the docket of this Circuit.

Respondent having declined to agree to a hearing on the papers as now prepared, the court signed the following order: It is ordered, that the appellant be, and she is hereby, allowed to reinstate her appeal, provided that, within twenty days from the date hereof, she shall file with the clerk of this court the return required by the rules of this court, and that she shall, within the same period of time, prepare and serve respondent’s attorney with a copy of her proposed “Case” and exceptions for hearing in this court, just as if no agreement had been heretofore entered into, and that respondent may, within the time prescribed, prepare and serve any amendments, which, if accepted, shall be incorporated in the “Case;” but if not accepted, then the “Case” shall be settled in accordance with the rules and practice of this court, and the case may be docketed for a hearing at the next term of this court.

W. H. Irvine and Shuman & Dean, for the motion. Jas. I Darle and T. R. Cooke, contra.  