Cunningham v. Cauthen

<p>Special Term, June, 1891. On March 11, 1891, the clerk of the Supreme Court entered an order dismissing the appeal herein under rules 1 and 2 for failure to file the return in proper time. This was a motion made on April 21, 1891, to reinstate the cause on the docket, but Justice Mclver being the only member of the court in attendance, the application was continued by consent until the court was in condition to hear it, of which due notice should be given by the clerk to the attorneys in the cause. On June 17, both Justices being present, the motion was heard and argued.</p> <p>It appears that the decree of the Circuit Judge was filed January 19, 1891, during vacation, and on January 28 notice of appeal with exceptions was served by defendant on attorneys for plaintiff, accompanied with a notice that the defendants would make and serve other exceptions. On February 23, after due notice given, the Circuit Judge passed an order giving appellant until June 1st to serve their Case with exceptions. This order was not known to the clerk of the Supreme Court when he granted his order dismissing the appeal.</p> <p>The question involved was whether the record constituting the return was complete on January 28, 1891, under the act of 1889 (20 Stat., 356), in view of the notice that the appellants would serve other exceptions and of the order of the Circuit Judge of February 23, extending the time for serving the Case with exceptions until June 1.</p>