■To vacate an order allowing an appeal from a judgment rendered by a justice of the peace, the order of allowance being based upon the affidavit of appellant, setting forth the employment of attorneys to appear in said matter, affiant’s absence from the place of trial for some months, the failure of the attorneys so employed to appear, and affiant’s ignorance of the fact and of the judgment a'gainst him.

Denied May 1, 1895, with costs.

The court imposed as a condition of the allowance of the appeal, the payment of a motion fee of five dollars, which amount was paid to and accepted by relators’ attorney.

As to the waiver respondent cited, Peninsular St. Co. vs. Osman, 73 M., 570; Higley vs. Lant, 3 M., 612; Wineman vs. Circuit Judge, 35 M., 497 (687); Cameron vs. Adams, 31 M., 71; Hamilton vs. Circuit Judge, 52 M., 409 (172); Climie vs. Odell, 20 M., 12.

Respondent further insisted that the mistake or neglect of attorneys brings the case within the statute, Capwell vs. Baxter, 58 M., 571; Merriman vs. Circuit Judge, 96 M., 603 (145).