
    PATTON vs. WRIGHT, ET ALS.
    
    Grundy wished to know of the court, if it were regular to move for the dismission of an appeal, and if the motion failed, to try the appeal during the same term.
    A motion by the appellee to dismiss an appeal,is a waiver on his part, of a trial at the same term, but the appellant may insist on a trial.
   Humphreys, j.

The appellee is entitled to his motion; if determined against him, he is entitled to a trial the same term.

Powel, j.

It does not seem to me to be a matter of right, to have a motion to dismiss an appeal. Appeals stand for trial during the first term. When an appellee makes a motion to dismiss an appeal, and has a rule entered, this virtually waives a trial at that term by the appellee, but the appellant is not bound by such waiver. He may insist upon trial when the suit is called, and if so, the objections of the appellee must be considered on the trial. If this were not the case ,a motion to dismiss, would amount a continuance.

Note.—Motions to dismiss appeals, on account of not not having been brought up agreeably to act of assembly, seem to be allowable in practice.

Overton, j.

agreed with Powel, j.

Since being acquainted with the practice, it uniformly has been, that upon application of the appellee, the court always permitted a rule to be entered to dismiss an appeal, but considered that rule as a waiver by the appellee of a trial during that term ; but the appellant had a right to call for a trial in the same manner as if no rule had been entered. If the appellant also waived trial, the rule to dismiss stood over to the last of the same term in which it was entered, after trials were entered, and sometimes to the rule day ; when, upon a short statement, the court would either dismiss or retain the appeal; If retained, the rule would be discharged. If the appellant insisted on trial, the appellee must shew cause for a continuance, in the same manner as if no rule had been entered. Upon the trial however,he might insist upon the same matter intended to be brought before the court by the rule to dismiss.  