
    No. 2812.
    No. 2828.
    Bomar v. Means.
    November Term, 1891.
    
      D. JE. Hydride, for motion.
    
      W. W. Thomson, contra.
    December 10, 1891.
    January 9, 1892.
   This was a motion to have an appeal declared abandoned for failure to file the “Case,” as settled by the Circuit Judge, with the clerk of the Circuit Court within ten days after such settlement, as required by rule 49 of the Circuit Court. The affidavit of such clerk stated that no “Case” had been filed in his office — only the order of the presiding judge directing what proposed amendments should be allowed and what disallowed.

The court said:

It appears that the notice to dismiss the appeal, or to declare the same abandoned, to which copies of these affidavits were attached, was served on appellant’s attorneys on November 30th, 1891, and that no effort has been made by them to have the clerk correct his affidavit, which appellant now claims was erroneous. As the facts appear, which are not controverted, the court has no other course but to enforce the rule and declare the appeal- abandoned.

Thereupon it was ordered that the motion be granted, that the appeal herein be and is hereby declared abandoned, and that the plaintiff, respondent, may proceed as if no case or exceptions had been made.

This was a petition for the rehearing of the order on the motion in the case next supra, the grounds of the petition being that appellant could show that the “Case” and the proposed amendments had been sent by the Circuit Judge, together with his order settling the “Case,” to the clerk of the Circuit Court.

The following order was passed

Per Curiam.

We have carefully considered this petition, and finding that no material fact or important principle of law has been overlooked, there is no ground for a rehearing. It is therefore ordered, that the petition be dismissed and that the stay of the remittitur be revoked.  