
    HAYES v. SEASE.
    AppEai,. — -It is error in the clerk to dismiss an appeal, under Rule 1, for failure to file “Return” in time without ten days notice of such motion to adverse party.
    Motion to reinstate appeal. Action by B. S. J. Hayes against T. Sims Sease, February term, 1896, Eexington County. Verdict for plaintiff for $825. Motion for new trial was made, and on February 29, Circuit Judge filed order granting new trial, unless plaintiff remitted $250. Defendant served notice of appeal 9th March, and ón 12th March plaintiff moved for taxation of costs. On 14th March defendant served exceptions to taxation of costs by clerk, which has not yet been heard on Circuit. On 15th March plaintiff served notice of motion for new trial on after-discovered evidence. This motion was heard September term, 1896, and order refusing motion was filed January 28th, 1897, and notice of such filing accepted January 29th, 1897. On January 30th, 1897, plaintiff learned for first time that judgment had been entered up on 12th March, 1896, for $575, without costs. On February 27, 1897, proposed case and exceptions were served. “Return” mailed to clerk of this Court March 2d, 1897. Appeal dismissed by clerk March 3d, 1897, without notice of motion to defendant.
    
      Messrs. Meetze & Midler, for the motion.
    
      Mr. J. Brooks Wingard, contra.
    May 27, 1897.
   Per Curiam.

This is a motion to reinstate an appeal dismissed by the clerk on the 3d March last. ■ Upon examination of the papers, it appears that no notice of the motion before the clerk to dismiss the appeal for failure to file the “Return” in proper time, was given the adverse party. Rule 1 of this Court provides that ten days notice of such motion shall be given the adverse party, and the provisions of that rule being applicable to this case, it was error in the clerk to dismiss the appeal without such notice.

We may add, if it were not that the point just decided settles the question here, this Court would be disposed, under the facts in this case, to favorably consider the motion on the principles announced in Crosswell v. Connecticut Indemnity Association, filed on the 18th instant.

It is, therefore, ordered, that the motion to reinstate the appeal be granted.  