Lewis v. Weir

'The opinion of the court was delivered by

The Court of Common Pleas had made an ■order in the early part of the term, that all appeals should stand over for trial until the second week of the term. Notice of that order had been given to the parties attending on appeals, in consequence of which they and their witnesses had left the court.

Subsequently, and during the first week of the term, the counsel for the appellee moved to dismiss the appeal on the ground that no appeal bond had been filed. This motion was resisted by the counsel of the appellant, as being out of order and in violation of the previous rule of court, postponing all appeals to the next week. The court however sustained the motion and dismissed the appeal. This is now complained of, and a mandamus applied for with a view to have the appeal restored.

We entertain strong doubts of the propriety of the Court of ■Common Pleas, under these circumstances, making any order *355which would finally conclude the rights of the parties, at a time when they were not bound to be present in court in person or by counsel. We do not mean to question the propriety of their making any order tending to the perfecting of the appeal, or any other merely interlocutory rule or order.

But in this particular case the application is refused, as on looking into the papers we are satisfied the appeal must ultimately be dismissed, being irregularly before the court. And the party has the less reason to complain, as the motion to dismiss was made in the presence of his counsel, who declined making any attempt to sustain the appeal. Motion refused.