Same Case — Application for a Re-hearing.
Winchester, prayed for a re-hearing.
Simon, J.The appellee’s counsel, in his application for a rehearing, complains of our having overlooked his plea to our jurisdiction, and which, he says, he had a right to expect, would have been examined and adjudicated upon, before an examination was made into the record.
We were aware of the appellee’s motion to dismiss the appeal, and of the exception by him filed to that effect. Indeed, our first impression was that his motion should prevail, as it did not appear that he had been cited ; but on being referred to the minutes of this court, we found the following order, regularly entered on the 23d of January, 1843, before the filing of the appellee’s exception : “ On motion of A. Bodin, Esq., counsel for appellants, and with the consent of Benjamin Winchester, of counsel for appellees, it is ordered, that the record, in this case be sent back to the clerk of the inferior court, for the purpose of being perfected and com*327pleted; the whole case to be submitted on briefs, within fifteen days after it is filed again in this court.” We were of opinion that the appellee's consent to the perfection of the record, and to the whole case being submitted on briefs, was such an appearance on his part as amounted to a waiver of the exception, and to an absolute renunciation of the right of moving for the dismissal of the appeal. Nay, we consider the order as a positive consent that the case should be tried on its merits, and as the appellant had not filed any point against the motion, we thought it was understood in the same way by the parties, and that it was unnecessary to notice it in our first opinion.
We still adhere to the same opinion. It is clear that if the appellee had intended to rely upon the want of citation, he should have abstained from appearing in the case, and from giving his consent to the completion of the record, and to the whole case’s being submitted on briefs. This consent is inconsistent with the motion of an appellee who, not having been cited, only appears to inform the court that the case is not in a condition to be tried, for want of proper parties ; and we cannot view the order referred to in any other light than as a waiver of the exception ; or, in other words, as an appearance on the part of the appellee, equal to that resulting from a regular citation of appeal.
On the merits, we still think that' the case was properly remanded for a new trial; as from the pleadings, and the evidence adduced by the plaintiff, so far as it is shown by the record, and supposing that further proof was adduced by him to establish his demand, the judgment appealed from, confirmatory of the judgment by default taken by the plaintiff; does not appear to us to be supported by such legal and satisfactory evidence as, from the allegations of the’petition, the plaintiff was bound to produce, to make it final. We feel convinced 'that, as the case stands, our affirming the judgment, would amqunt to a denial of justice.
Re-hearing refused.