
    Adele Guerin vs. St. Paul & Sioux City Railroad Company and another.
    November 17, 1884.
    Practice on Appeal to Supreme Court — Piling of Return by Respondent — Affirmance for Failure to Serve Paper-Book and Points.
    Order to show cause.
    The defendants appealed from an order of the district court for Bamsey county, Brill, J., presiding, setting aside the clerk’s taxation of costs. On May 3, 1884, the appellants served on respondent their notice of appeal and bond, and on November 7, 1884, the respondent caused a return to be made and filed in this court, (the appellants having failed to do so,) and on the same day obtained this order to show cause why the order appealed from should not be affirmed.
    
      Bigelow, Flanclrau & Squires, for appellants. ■
    No notice to file return was served on appellants’ attorneys under rule 4, and respondent cannot put appellants in default without following the provisions of rule 4, and giving appellants notice. There is no rule or practice which allows respondent to file a return for appellant, and without giying any notice.
    On the first day of the term, (October 7, 1884,) the respondent was entitled, under rule 4, to have this appeal dismissed, but was not entitled to an affirmance. There being no return on file on the first day of the term, the provisions of rules 11 and 14 did not apply. These rules apply to a case where a return is on file, and the court can then affirm; until then the court has no jurisdiction to enter an order of affirmance, which goes to the merits of the case.
    
      Chas. S. Bryant, for respondent.
   By the Court.

Under rule 4, when an appellant fails to cause' a return to be made to this court within 60 days after the appeal is perfected, the respondent may compel him to make it, or have the appeal dismissed by the entry of an order with the clerk; and this may be done either in vacation or term time. The respondent may also, at any time, and without waiting for the lapse of the 60 days, himself cause a return to be made. This right of the respondent has been repeatedly, and for many years, recognized in this court, as calculated to prevent unnecessary delay, and speed the determination of causes. A return having been made, whether at the instance of tho respondent or appellant, the respondent may, in a proper case, move for the affirmance of the order or judgment appealed from. Under rules 11 and 14, such proper case is presented when, without sufficient excuse, the appellant has failed to deliver to the adverse party a copy of the paper-book, and of his points and authorities, 20 days before the first term of this court commencing more than 80 days after the appeal is perfected. The order appealed from in this ease is accordingly affirmed.  