
    No. 2729.
    Donahue v. Enterprise Railroad Company.
    November Term, 1890.
    This was a motion by respondent for an order declaring the appeal abandoned for failure to file the Case with the clerk of the Circuit Court within ten days after the settlement, as required by rule 49 of the Circuit Court rules. The judgment of this court was delivered orally January 14, 1891, as follows:
   Per Curiam.

This is a motion for an order declaring the appeal abandoned under rule 49 of the Circuit Court. The appellant contends that this rule has no application to the Supreme Court. In this view this court cannot concur. That question was incidentally decided in the case of Lombard v. Brown, ante, 598. Although the point was not distinctly raised, yet it was necessarily involved in the questions therein discussed. In that case this court necessarily applied the rule. In addition, the appellant has heretofore moved to be relieved from the operations of this very rule in this case, which motion has been refused. [See next case, ante.] That motion was based on the theory that rule 49 was applicable to this court, and on that the court acted. Under these circumstances the court does not consider itself justified in departing, from these two precedents. The motion is granted.

W. H. Fitzsimons, for the motion. W. H. Parker, jr., contra.  