
    COURT OF APPEALS.
    Latson, Appellant, agt. Wallace, Respondent.
    Where a judgment is affirmed by default, it is too late to move to open the default, after the remittitur has been filed in the court below.
    The object of the seventeenth rule was to give the appellant time to make the application before the filing of the remittitur.
    
      June Term, 1854.
    This was a motion to open a default taken at the last March term.
    The appellant, who appeared in person, showed by affidavit that, in consequence of illness in his family requiring his attendance at home, he had been unable to attend the March Term. The delay, however, was not very satisfactorily accounted for, and it appeared that the taxation of costs had been adjourned in the court below from the 5th till the 12th of May.
    Lewis Benedict, Jr., for Appellant.
    
    Joshua Coit, for Respondent.
    
   By the Court—Parker, J.

The appellant shows an excuse . which could perhaps be received as sufficient to entitle him to open the default on terms, if the cause was still within our control. But the application comes too late. The default was taken on the 8th of April last, and notice thereof was served personally on the appellant on the 10th day of April. The remittitur was received by the attorney for respondent on the 5th day of May and filed with the clerk of the superior court on the 12th day of May. On the filing of the remittitur in the court below, this court loses jurisdiction of the cause. (Martin agt. Wilson, 1 Comst. Rep. 240; Burckle agt. Luce, id. 239.)

The l7th rule of this court, (2 Comst. R. 576,) requiring a delay of ten days after service of notice of the default before the sending out of the remittitur, was intended to protect the party against surprise and to give him ample time to make his application for relief, or to obtain an order staying proceedings to enable him to do so. The appellant has neglected the opportunity to avail himself of the benefit of the time thus given, and this court has surrendered to the court below all control over the cause.

The motion must be denied, with $10 costs.  