
    William Terhune, appellant, v. William H. Pinkney et al., respondents.
    An appeal was taken on July 9th, the complete record was filed in the surrogate’s office on September 16th, and on October 15th, the first day of the term, the appeal was dismissed because the appellant had not filed here a transcript of the proceedings below. On a motion to re-instate the appeal— Held, (1) that notice of the motion to dismiss the appeal was not necessary; (2) that if appellant had needed additional time for filing his transcript, he ought to have applied therefor promptly.
    On appeal from decree of Sussex orphans court. Motion to re-instate appeal.
    
      Mr. M. Rosenhrans, for the motion.
    
      Mr. T. Kays, contra.
    
    
      
       Since changed by rule promulgated at May Term, 1885.—Rep.
    
   The Ordinary. •

On the first day of the last term of this court, this appeal was dismissed, on the ground that the appellant had not caused the transcript of the proceedings in the orphans court to be filed as required by the rules of this court, nor at all. The appellant moves to re-instate the appeal, on the ground of surprise and merits. The allegation that one of the proctors of the respondents, on the 12th of July last, assured the proctor of the appellant that “ no advantage would be taken of the situation,” that is, that the fact that the stenographer’s translation of his notes of the evidence had not been filed in the surrogate’s office, would be regarded as a sufficient excuse for not filing the transcript within the time fixed by the rules, is positively denied. It was •clearly the duty of the proctor of the appellant to apply to the court for further time, if it was needed, to file the transcript. Moreover, the record of the evidence was filed in the surrogate’s ■office on the 16th of September, and the first day of the next term was the 15th of October. There was, therefore, time enough after the record had been filed to get the cause ready for hearing at the last term. The proctor of the respondent moved, as before stated, on the first day of the last term. That was the first term after the taking of the appeal, which was taken on the 9th of July last. He was not bound to give notice of the motion. The motion to re-instate will be denied, but without costs.-  