
    WALTER CHAMBERS v. PHILADELPHIA PICKLING COMPANY.
    Submitted July 6, 1911
    Decided November 13, 1911.
    When the record of a trial court has been removed by writ of error into an appellate tribunal for review, and the judgment of the latter court is that the record bo remitted for further proceedings thereon, such proceedings cannot properly be had until the record is actually returned to the court of first instance.
    On defendant’s rule to show cause.
    Before Gummeke, Chief Justice, and Justices Paekeb and Vooriiees.
    For the rule, Wilson & Carr.
    
    Contra, Wescott & Wescoti.
    
   The opinion of the court was delivered by

Gummere, Chief Justice.

This case was tried at the Camden Circuit on. April 11th, 1911, in the absence of the defendant, and resulted in a verdict for the plaintiff. The case had been in the Court of Errors and Appeals on a review of a judgment overruling a demurrer. The remittitur from the Court of Errors and Appeals bears date March 6th, 1911; the file mark endorsed upon it by the clerk of the Court of Errors and Appeals, however, bears date April 24th, 1911, thirteen da3's after the trial at the Circuit. The reasonable conclusion to be drawn from these variant dates is that, although the remittitur was ordered by the appellate court on the 6th day of March (that being the date upon which the opinion of that court was delivered in the case), the plaintiff’s attorney failed to file the remittitur in the clerk’s office until the 24th of April. On this assumption the trial was premature, for the writ of error removed the record into the court of review, and that record remained there until the remittitur was actually entered. Welsh v. Brown, 13 Vroom 324. Moreover, under rule 39 of the Court of Errors and Appeals, the record is not permitted to be actually remitted to the court below until after the expiration of ten days from the date of the entry of the remittitur, without a special order of the court. Until the record was returned the court below was without power to try the case. Eor this reason the rule to show cause will be made absolute.  