This appeal was returned on the second Monday, 13th day of January, 1868, and the transcript was not filed until the 22d day of said month, more than three judicial days having expired.
The appellee has filed a motion to dismiss the appeal on said ground, and the appellant replies that the motion is too late, not having been filed within the three days after the return-day. Since the ruling in the1 case of Dwight v. McMillen (4 A. 350,) it has been the practice to dismiss appeals on this ground, without reference to the delay in filing the motion, provided the appellee has not waived his right by making appearance. The present bench has had occasion more than once to apply this rule of pratice, and we see no good reason in this case for departing from it. See 10 A. 75.
The want of citation in the case of Dwight v. McMillen was one of two causes, either of which was sufficient for the decision.
The appellee is not bound after the three days to know that the, transcript has been filed, unless the return-day is extended.
It is therefore ordered that this appeal he dimissed at appellant’s costs.