
    WILLIAM H. HOCKENBURY, APPELLANT, ads. PETER ALPAUGH, APPELLEE.
    1. When, upon an appeal taken, the justice has neglected to certify his transcript, the appellant is entitled to a rule upon him to amend.
    2. If the appellant has been prevented from obtaining such rule through surprise, and without any fault of his own, in consequence of which his appeal has been dismissed, a mandamus will issue to the court below, directing that the appeal be reinstated. i
    On rule to show cause why a mandamus should not be awarded, commanding the Court of Common Pleas of the county of Hunterdon to reinstate an appeal. *
    Argued before Dalrimple, Depue, and Van Syckel,, Justices.
    For rule, J. R. Emery.
    
    Contra, Mercer Beasley, Jr.
    
   The opinion of the court was delivered by

Van Syckel, J.

The court below dismissed the appeal because the justice had neglected to certify his transcript; of which action the appellant complains because the court refused to grant him a rule upon the justice to amend.

Affidavits taken on the part of the appellant show, that at the opening of the court on the 2d day of February last, the appellant’s counsel moved for a rule upon the justice to certify his transcript, which motion he was requested by the court to renew, when the appellee’s counsel should come into court, and to this he assented, upon condition, as he understood it, that his application should then be granted. The motion, when subsequently renewed, the same day in the presence of the adverse counsel, was denied, and the appeal dismissed. It sufficiently appears that the defect, upon which the dismissal rests, could have been cured without occasioning any delay, if the motion had been granted when first made, and that the appellant has been deprived of a trial of his cause without any fault of his own.

If the rule had been ordered when first applied for, and the justice’s return had not been procured before the appeal was peremptorily called, a different case would be presented.

The affidavits are competent to show a case of surprise, and their admissibility is not in conflict with Scott v. Beatty, 2 Zab. 256, or Paterson and Ramapo Railroad Company v. Ackerman, 4 Zab. 535. If the appellant had not understood that his application was to be granted at a later hour, he would have insisted upon having the rule when first asked for, and might have perfected his transcript in dne season.

The rule to show cause must be made absolute.

Mandamus awarded.  