A motion, by the appellee, to dismiss an appeal is a waiver of his right to try at that term, but the appellant may insist on a trial when the cause is called, and the appellee, if not ready, must continue as in other cases; and on the trial the objections of the appellee would be considered.
GRUNDY wished to know of the Court if it were regular to move for the dismission of an appeal, and, if the motion failed, to try the appeal during the same term.
HUMPHREYS, J. —
The appellee is entitled to his motion; if determined against him, he is entitled to a trial the same term.
POWEL, J. —
It does not seem to me to be a matter of right to have a motion to dismiss an appeal. Appeals stand for trial during the-first term. When an appellee makes a motion to dismiss an appeal, and has a rule entered, this virtually waives a trial at that term by the appellee, but the appellant is not bound by such waiver. He may insist upon trial when the suit is called, and, if so, the objections of the appellee must be considered on the trial. If this were not the case, a motion to dismiss would amount to a continuance.
OVERTON, J.,
agreed with POWEL, J. — Since being acquainted with the practice, it uniformly has been that, upon application of the appellee, the Court always permitted a rule to be entered to dismiss an appeal, but considered that rule as a waiver by the appellee of a trial during that term; but the appellant had a right to call for a trial in the same manner as if no rule had been entered. If the appellant also waived trial, the rule to dismiss stood over to the last of the same term in which it was entered, after trials were ended, and sometimes to the rule day; when, upon a short statement, the Court would either dismiss or retain the appeal; if retained, the rule would be discharged. If the appellant insisted on trial, the appellee must show cause for a continuance in the same manner as if no rule had been entered. Upon the trial, however, he might insist upon the same matter intended to be brought before the Court by the rule to dismiss.
ORIGINAL NOTE. — Motions to dismiss appeals, on account of not having been brought up agreeably to Act of Assembly, seem to be allowable in practice.
NOTE. — The case is silent as to the fact, but the language used would indicate an appeal from the County Court to the Superior Court for re-trial by jury. The practice of the Supreme Court, as a court of errors, has not been to consider a motion to dismiss as a waiver of the right to try at the same term. — ED.