
    No. 2056.
    Pregnall & Bro. v. Miller & Kelly.
    April Term, 1887.
    
      May 20, 1887.
    
      Isaac Bayne, for the motion.
    
      J. P. E. Bryan, contra.
   per curiam,

This was a motion to restore to the docket a case dismissed by the clerk of this court under Rule I. Under this motion the following points were ruled, most of them orally :

1. Upon the application of appellant’s attorney, a rule was issued by this court on May 17 requiring respondent to show cause on May 20 why the appeal should not be restored to the docket. The rule, with the affidavits of appellant, was served on May .18, and on May 20 the return was made and the motion argued.

2. The clerk of this court may dismiss an appeal if the return has not been filed within forty days after the record is completed, even though the motion to dismiss is not made until after the return has been filed and the cause docketed.

3. The appeal having been dismissed by the clerk under Rule I., the court will not restore it unless appellant’s failure to file the return was the result of unavoidable causes, inadvertence, or mistake.

4. Where parties agree upon a Case, the filing of the return from the court below is dispensed with. But there was no agreed case here.

Motion refused  