Ottawa, September Term, 1880.
Appearance—violation of agreement to enter the same. The mere fact that counsel for the defendant in error in a cause pending in the Supreme Court has promised to enter the appearance of his client., and then violated his agreement by refusing to do so, will not constitute an appearance of the party so as to authorize the setting aside of an order of continuance, entered for want of service, and setting the cause down for hearing.
Writ op Error to the Appellate Court foi* the Second District.
This cause was continued at the present term for want of service of process, or publication of notice, the defendant in error being a non-resident. Subsequently the plaintiff in error entered his motion to set aside the order of continuance, and to place the cause on the hearing docket for this term. The motion was supported by an affidavit which alleged that publication of notice had not been made because of the request of counsel for the defendant in error that it should not be made, and his promise that he would enter the appearance of his client in this court. It was further alleged in the affidavit that this agreement had been violated, and the counsel refused to enter the appearance except upon a condition not suggested when the promise was made,—that the plaintiff in error should file a bond for costs.
*132Messrs. McKenzie & Calkins, for the motion.
Scholfield, J.:
All that is shown by the affidavit filed in support of this motion is, that the attorney for the defendant in error made an agreement that he would enter the appearance of his client, and has violated that agreement. This might give a cause of action against the attorney, but it does not constitute an appearance. Mo scire facias has been served, nor has there been any publication, of notice. The defendant in error is not in court.
Motion denied.