
    No. 3088.
    Simonds v. Marco,
    November Term, 1892.
    This was a motion, in behalf of the plaintiff, respondent, for an order declaring the appeal herein abandoned, and allowing plaintiff to proceed as if no appeal had been taken, under Rule XLIX. of the Circuit Court, upon notice, with accompanying affidavit and certificate. The court say:
    Rule XLIX. is explicit. It provides as follows: “XLIX. Where a party makes a case or exceptions, he shall procure the same to be filed within ten days after the same shall be settled, or it shall be deemed abandoned. And on filing affidavit that such case, or exceptions, has not been filed, and showing the time of the settlement thereof, and that more than ten days has elapsed from the time of such settlement, an order, of course, may be entered declaring the same abandoned, and the party may proceed as if no case or exceptions had been made.” In this case, a showing has been made in conformity to this rule. It appears that the case was settled by agreement between the parties on the 26th day of May, 1892,- and on the 8th day of-June, 1892, the clerk certifies that the same had not b.een filed in his office. Under this showing, the court would be bound, however reluctantly, to grant the motion as the rule prescribes. The rule is imperative, and the court has no discretion in the matter upon a proper application made.
    But in this ease the appellants have made application to be relieved from the operation of this rule, upon notice and affidavits. This application is based, as we understand it, on section 349 of tbe Code of Civil Procedure, which provides as follows: “When any party shall omit, through mistake or inadvertence, to do any act or acts necessary to perfect an appeal, or to stay proceeding, the Supreme Court may, in their discretion, permit such act or acts to be done at any time to perfect the appeal on such terms as may be just, provided that the court shall be satisfied that the appeal was taken bona fide, and provided that notice of the same was given as now required bylaw.” This presents a question of fact, to be solved by affidavit. The mistake contemplated by this section, we have already decided, is one of fact, and not one of law.
    The application for relief is based on two grounds: First. That counsel for appellants had been under the erroneous impression that Rule XLIX. of the Circuit Court did not apply to cases for appeal that were agreed on, but to cases that were settled, and had acted under this impression in previous cases. This court decided in the case of Chisolm v. Providence Insurance Company (35 S. C., 599), that Rule XLIX. must be complied with, though the case was settled by agreement between the parties. This decision was made January 5th, 1892, and published in February following. See 14 S. E. Rep., 349. The case here was agreed upon, as previously stated, in May, 1892. Secondly. That, notwithstanding the impression aforesaid, one of the counsel for appellants is under the impression that he suggested chat the case should be filed, in the clerk’s office, out bf abundant caution, though he did not think it necessary, and that he directed the clerk in his office to so file it. His impression, however, is too indistinct for him to swear to it. The other counsel makes affidavit that his partner did so suggest, and directed the office clerk to file the case. Now, if it had appeared that such direction was given to the office clerk within the ten days required by the rule, we would, without hesitation, grant the relief asked for; but it does not appear that such direction was given in the time required, and it is with regret that we say so. The burden of proof is upon the appellants to make the proper showing for the relief asked for. This not being done, the motion must be granted.
    January 10, 1893,
   The following order was thereupon passed,

Pee Cubiam.

The case herein having been settled • by agreement on the 26th day of May, 1892, and the same not having been filed in the clerk’s office of the Circuit Court within ten (10) days, as required by the 49th rule of the Circuit Court, all of which appears by the motion papers herein, and the facts presented in the affidavits submitted by appellants’ attorneys, asking to be relieved from the effect of said rule, not being suffieint for the granting of such relief in the judgment of this court, after hearing Messrs. Buist & Buist, attorneys for respondent, and Messrs. Boyd and Brown, attorneys for appellants, it is ordered, that the said appeal be declared abandoned, and the plaintiff be allowed to proceed as if no appeal had been taken.  