
    No. 2946.
    Archer v. Long.
    April Term, 1892.
    This was a motion, the nature of which appears from the ruling of the court thereon, which was as follows :
    At the last term of this court appellants moved for a suspension of their appeal, with leave to them to apply to the Circuit Court for a new trial on the ground of after-discovered evidence. This motion was granted. 35 S. C., 588. Afterwards, and ■before the next term of the Court of Common Pleas for Union County, counsel for appellant sought an arrangement with counsel for respondent by which a time for the hearing of the motion in the Circuit Court would be fixed by agreement. This proposition having been promptly refused, it was the duty of appellant’s counsel to have given notice at once of a time when he would urge his motion in the Circuit Court of Union. In failing to do this, he was in default, for it appears that if the notice had then been given of a motion to be made during the first week of the term, the motion would have been reached and heard. No notice of the motion, however, was given until March 12th, the last day of the first week of the term ; and the result was that the motion was not reached until two hours before the final adjournment of the court, and therefore was not heard.
    But while appellants were in default, respondent was in default too, for on failure of appellant’s counsel to bring his motion to a hearing at that term, counsel for respondent should have moved on Circuit for an order directing the case to be certified back to this court, and then this court would have had official information of tv hat had occurred on Circuit. Both parties, therefore, were in default, not in the sense of anything improper, but in legal default.
    The motion now before us is to have this cause restored to the docket of this court, and to rescind the former order of this court suspending the appeal and giving leave to appellants to make their motion on Circuit. The cause has been improperly dropped from this docket, as the appeal having been only suspended, it should remain on the docket of this court. We cannot now rescind our former order in this case, for the Circuit motion has been noticed and docketed in the Circuit Court, and, therefore, the motion now before us must be refused at this time. But we will grant an order that unless the motion heretofore authorized to be made on Circuit .shall have been made before the Circuit Court, and there heard before the next term of this court, the former order of this court will be rescinded and the pending appeal will then be heard. Let counsel prepare such an order.
    
      D. E. Hydride, for the motion. W. W. Thomson, contra.
   A formal order carrying out these directions was thereupon prepared and signed April 30, 1892.  