
    PAINE v. LINHILL et al.
    
    On an appeal from an order made on affidavits filed, no statement is necessary. The affidavits must be annexed to the order, in place of a statement, and the certificate of the clerk should specify the affidavits used, and to,enable him to do so he should, at the time, mark them as filed on the motion.
    Motion to vacate an order of dismissal, and to reinstate the cause on the calendar.
    
      Charles E. Filkins for the motion.
    
      R. S. Mesick in opposition.
   Field, J., delivered the opinion of the Court

Terry, C. J., and Baldwin, J., concurring.

The appeal in this case was dismissed at the present term, for failure of the appellant to file a transcript of the record. The appellant now moves to vacate the order of dismissal upon the certificate of the clerk of the Court below that the statement prepared was submitted some months since to the District Judge for settlement, and has not as yet been settled.

In answer to the motion, the respondent shows that the order appealed from was made upon affidavits of the respective parties, and insists that no statement is required.

The Practice Act, after designating the manner in which statements shall be prepared, expressly excepts appeals from an order made upon affidavits filed, and provides that the affidavits shall be annexed to the order, in place of the statement. (§§ 339,343.) All that is requisite, then, in such cases, is that the certificate of the clerk should specify the affidavits used, and to enable him to do so he should, at the time, mark them as filed on the motion.

Motion denied.  