Lower v. Knox

Field, J., after stating the facts of the case, delivered the opinion of the Court Terry, C. J., concurring. The motion to dismiss must be granted. The failure of the sureties to justify left the first appeal, by the express terms of [481] the statute, as though no undertaking had been given, and ineffectual for any purpose. (Practice Act, § 348 and § 355, as amended in 1854.) The clerk very properly refused to take the justification of the sureties before the last hour stated in the notice. The defendant should have designated an hour at which he would have been present with his sureties, and he could not, by his failure to do so, compel the attendance of the opposite party the entire day in waiting for his appearance. The second appeal, so far as the order denying a new trial is concerned, was taken too late. The time for appeal had previously expired. This view leaves the record with only the appeal from the final judgment, and upon this appeal there is no statement which we can regard. The statement embodied in the record was filed upon the motion for a new trial, some months after the entry of the judgment, and upon it we could only examine the action of the Court in denying the motion, and this action is not open for review, as no appeal was taken in time from the order. Our attention must, therefore, be confined to the judgment-roll, and this discloses no error. Judgment affirmed.