
    Calvo v. Railroad Company.
    November Term, 1888.
    December 11, 1888.
    
      John McMaster, for the motion.
    
      J. 0. Haskell, contra.
    This was a motion to reinstate an appeal which had been dismissed by the clerk for failure by appellant to file his return within the time required by rule 1 of this court. Appellant submitted, as the reason for such failure, that within the forty days a motion had been made on Circuit to vacate the judgment, and he supposed that the pendency of such motion prevented him from proceeding with his appeal.
   By the Chief Justice.

Rule 1 requires the clerk to dismiss the appeal when the return is not filed within forty days. In this case the return was not filed within forty days, and therefore the clerk properly dismissed the appeal. This court can restore the appeal so dismissed, and will do so when the default occurred through “unavoidable causes,” but the court sees nothing in this case to bring this default within this rule. Motion refused,  