
    WILLOUGHBY v. N. E. R. R. CO.
    1. Notice oe Intention to appeal from judgment to be entered up should be served -within ten days from adjournment of Court.
    2. An APPEAR will not be dismissed for failure to serve the “Case” in time, where the delay is shown to be such excusable default as is contemplated by section 349 of Code.
    Motion to dismiss appeal. The case of Ella F. Wil-loughby against the North Eastern Railroad Company was tried at Florence, February term, 1897, before a jury, and resulted in a verdict for defendant. Court adjourned February 6. Notice of intention to appeal from the judgment “entered or to be entered” was served February 13. During the trial of the cause, certain original records were used from the county of Williamsburg. By the permission of the Court, the clerk carried these records back to Williams-burg, with the understanding and promise, as plaintiff claims, that defendant’s attorneys would place in the record in Florence certified copies of the Williamsburg record. On March 4, plaintiff’s attorneys served on defendant’s attorneys a notice to file the certified copies of the Williamsburg record, and on same day a notice to enter up judgment. Certified copies of the Williamsburg record were filed March 12. Judgment was entered up March 20. Notice of intention to appeal from judgment entered up was served March 29. Return filed within twenty days after 29th March. “Case” and exceptions served April 24. Motion papers served April 23.
    
      Messrs. P. A. Wilcox, P. M. Gillam, and Theo. G. Barker, for the motion.
    
      Messrs. W. F. Clayton and T. Y. Williams, contra.
    May 12, 1897.
   PER Curiam.

The Court, after hearing argument of appellants’ and respondent’s attorneys upon a motion to dismiss the appeal herein, is satisfied that the notice of appeal was served with the bona fide intention of appealing to this Court, and that although the appellant failed to comply with the requirements of the statute in the preparation of the case for hearing on appeal, the failure to do so was due to such mistake as is contemplated by section 349 of the Code, and from which he is entitled to relief. '

. It is, therefore, ordered, that the motion to dismiss be, and the same is hereby, refused upon the following terms: That if the defendant so desires, the case shall be set down for hearing by this Court on Thursday, the 10th day of June, 1897, at 6 o’clock p. m. That if the appellant fails to comply with this requirement, the appeal shall be dismissed.  