The facts as shown by the record in the case and the affidavit of George A. Cady, one of plaintiff’s attorneys, filed in support of said motion, were:

a — That the writ of error was issued June 5, 1895, returnable July 15, 1895, an,d returned and filed July 19,1895.

b — That the case was noticed by the appellee for the October, 1895, term of Court, but was stricken from the docket,' copies of the printed record not having been filed; that on December 9, 1895, the appellee noticed the case for hearing for the January, 1896, term of court, and included in the notice a statement that in ease the printed record was not filed and served on or before the first day of said term, a motion to dismiss the writ of error and affirm the judgment sought to be reviewed would be made.

c — That no copy of the assignments of error has ever been served upon the appellee or her attorneys; that on January 7, 1896, the ease was stricken from the docket of the January, 1896, term of court; that no copies of the printed record have been filed, nor Jias the appellee or her attorneys received up to the time of making said affidavit (January 11, 1896) any copy of said record or of the brief for the appellant.