#### Pierce vs. Kelly, imp.

Practice in Supreme Court. *Rehearing. When this court loses appellate jmiscli-ction of a cause.*

1. Under sec. 7, ch. 264 of 1860, this court loses jurisdiction of appeals in thirty days after judgment on them, here, unless the jurisdiction is re*569tained by order of the court for the purpose of a motion for rehearing, made within that lime *(Pringle v. Bunn, ante,*p. 435,); and this applies where the judgment here is one dismissing the appeal for noncompliance with the rules.

2. "Where a motion for a rehearing is made after this court has lost jurisdiction of the action, it cannot entertain the motion, nor deny it with costs; and in such a case it denies the motion without costs. ■

APPEAL from tbe Circuit Court for *Raovne*County.

Tbis case was submitted on tbe record, printed case and briefs, on tbe 3d of March, 1876; and on tbe 21st of tbe same month tbe court made an order dismissing tbe appeal, *“*because tbe printed case is materially defective and fails to comply with tbe rule.” On tbe 13th of April following, tbe appellant’s attorneys served on those of tbe respondent notice of a motion to be made on tbe 18th of that month, or as soon thereafter as they could be beard (based on an affidavit annexed to tbe notice and tbe papers filed in tbe cause) for an order reinstating tbe cause upon tbe calendar, and for leave to perfect tbe printed case, etc. Tbe annexed affidavit of one of tbe appellant’s attorneys stated facts to explain and excuse tbe defects of tbe printed cáse, and also stated that tbe appellant bad a good and substantial defense on tbe merits, etc. "While tbe motion to reinstate was pending, one of tbe justices of tbis court, upon the further affidavit of appellant’s attorney, directed an order to be entered, retaining tbe record until tbe motion should be disposed of; and on tbe 18th of April, tbe respondent’s attorneys stipulated that such motion might be beard on tbe next motion day of tbis court, and that tbe record be retained here until tbe motion was disposed of.

Tbe motion was submitted on tbe 28th of April, and tbe following opinion was filed on tbe 23d of May:

Pur CueiaM.

Tbis motion comes too late. In *Pringle v. Dunn, ante,*p. 435, it was held that under see. 7, cb. 264 of 1860, this court loses jurisdiction of appeals in' thirty days after *570judgment on them here, unless the jurisdiction is retained by order of the court for the purpose of a motion for rehearing, made within that time. The statute makes no other exception, and the court has no power to add others to the statute. And in cases of dismissal for noncompliance with the rules, the judgment of dismissal is a judgment on the appeal within the meaning of the statute. *Estey v. Sheckler,*36 Wis., 434. No stipulation of the parties, and no order except on a motion and for the purpose of rehearing, is of any avail, under the statute, to retain the appeal here or to prolong the jurisdiction of the court over it.

Thirty days after the dismissal in this case had elapsed before this motion was made. And the court had lost jurisdiction to entertain the motion, or to deny it with costs.

The motion is therefore denied, without costs.