Constant

(dissenting.) Section 277 of the Practice Act provides that the hearing of appeals shall he noticed for the first day of the term by a notice of at least four clays and may be noticed and brought on by either party. The twelfth ride of this court declares, that when the cause shall be called cm the calendar, if the appellant shall not appear, the respondent may move for an affirmance of the judgment, and if the respondent *335 does not appear, the appellant may proceed in the argument ex parte. The appellant in this case gave the notice of argument required by the statute, hut the respondent did not; the cause was called on the calendar, and the respondent moved, under the rule, for an affirmance of the judgment. His motion should he denied. The statute and rule of court should both be construed together, and the meaning of both is, that the appellant may notice the cause and bring it on, and, if the respondent fail to appear, may proceed in the argument exparte; and that the respondent may notice the cause and bring it on, and, if the appellant fail to appear, may move for an affirmance of the judgment. By the statute and rule both parties are regarded as actors, so that either…

By the Court,

Section 277 of the practice act provides that the hearing of appeals shall be noticed for the first day of term, by a notice of at least four days, and may be noticed and brought on by either party. The 12th rule of this court declares that when the cause shall be called on the calendar, if the appellant shall not appear, the respondent may move for an affirmance of the judgment, and if the respondent shall not appear, the appellant may proceed in the argument ex parte. The appellant in this case gave notice of argument required by statute. The cause was called in its order on the calendar, and the respondent moved, under the rule, for an affirmance of the judgment. The respondent not having given the notice of argument required by the statute, it is argued that lie is not entitled to an affirmance. It does not appear that the rule and statute conflict, and it is evident that either party may notice the cause and bring it on; and thus either party may be the actor; but it does not follow that both parties shall be regarded as actors in such case. If the appellant notice the cause for argument, the respondent is notified to appear and respond not only to the point…