Pickett

A motion is made herein to dismiss this appeal for a failure to file the transcript within the time prescribed under Rules 3 and 4 of this Court, on the certificate of the Clerk of the Court a quo. The certificate is in accordance with the requirements of Rule 4. Notice of this motion was given on the 16th day of May, 1879, and the transcript was filed on the 24th of December following.

The respondent is entitled to a dismissal of the appeal, unless there is some circumstance which should induce the Court to waive the rule. Rules of Court are but a means to accomplish the ends of justice, “ and it is always in the power of the court to suspend its own rules or to except a particular case from their operation, whenever the purposes of justice require it.” ( United States v. Breitling, 20 How. S. E. Rep. 252-254; People v. Williams, 32 Cal. 280 -288.)

Four of the judges of the late Supreme Court were defendants in this action, and respondents here. They were disqualified to hear and decide the cause. Nor was there a court competent for that purpose until the fifth of January, 1880. The transcript was filed before there was a court competent to hear it. And under these…