#### Cropper v. West.

Argued Tuesday, March 22d, 1814.

I. Appeals — Dismissal—Re-Instating — Notice.* — After regularly dismissing an appeal for want of prosecution, the Appellate Court cannot re-instate the same at a subsequent term, without a rule having been made upon, or due notice given to, the adverse party to appear and contest the motion.

See the 9th rule of Practice in the Superior court of Chancery for the Richmond District. 1 H. &M. VI.

Several points were argued in this case by Wirt for the appellant and Upshur for the appellee ; but one only was decided by the court.

A decree was rendered, on the 2d day of September 1801, by the County Court of Accomack, in favour -of Cropper against West, from which the latter appealed to the late High Court of Chancery. The suit was, according to the law, transferred to the Superior Court for the Williamsburg District ; and, on the 21st of April 1803, “the appellant being solemnly called and not appearing,” his appeal was ordered to be dismissed.

Afterwards, on the 12th of March 1804, he made oath, “that he did not know that his suit with Cropper was removed from Richmond to Williamsburg, until the 15th or 16th day of last October, at which time, residing above Accomack Court-house, he had not even heard of any alteration in the Court of Chancery ; that having employed Mr. John Wickham *of Richmond as his ■counsel, he had relied on him, and waited to receive instructions from him as to the said suit; that he would have employed counsel in the Williamsburg District, but, entirely relying on Mr. Wickham, was astonished when informed of the dismission of his appeal; that he had now employed other counsel, and wished to be relieved in the premises.”

In April 1804, “on the motion of the appellant by his counsel, and for reasons appearing to the court,” it was ordered, that the order for dismissing the appeal be set aside, and the said appeal be again placed on the docket.

In does not appear from the record that any previous notice of this motion was given to Cropper.

In October following, the chancellor (Tyler) reversed the decree of the County Court, and dismissed the original bill, with costs. In. April 1805, a bill of review was exhibited by Cropper, on the grounds of error, in point of law, existing on the face of the said decree of reversal, and of fraud, on the part of West, in obtaining, as aforesaid, the re-instatement of the appeal. The chancellor granted leave to file this bill, but, in July 1811, affirmed the decree attempted to be reviewed, and dismissed the bill of review ■ with costs ; whereupon the plaintiff appealed to this court.

Wednesday, December 7th, 1814,

*

See generally, monographic *note*on “Appeal ana Error ” appended to Hill v. Salem, etc.. Turnpike Co., 1 Rob. 263.

the president pronounced the court’s opinion, that the appeal, depending in this case from the decree of the County Court of Accomack, having been regularly dismissed by the court of Chancery on the 21st day of April 1803, it was not competent for that court to reinstate the same, at a subsequent term, upon the grounds' stated in the proceedings, without a rule having been made upon, or due notice given to, the adverse party to appear and contest the same. On this ground, without deciding on any other, the court is of opinion, that the said decree, and all the proceedings subsequent to the order of dismission of the 21st of April 1803, are erroneous, and that there is no error in the Said order. Therefore, decree reversed, proceedings set aside, and order of dismission of the original bill affirmed, with costs.