Joyce v. Dickey

Elliott, J. The judgment from which this appeal is prosecuted was rendered in February, 1880. On the 11th day of the -following December the appellants moved the court to strike out part of the original complaint then on file, in order to make it the same as a substituted complaint which had been filed by the appellee. This motion was not ruled upon until October 15th, 1883, when it was sustained. In February, 1880, the motion for a new trial was overruled, and this was followed by a judgment for the appellee. On the 15th day of October, 1884, this appeal was taken. The appellee, in his answer to the appellants’ assignment •of errors and by motion to dismiss, presents the question of the right to appeal. W e think that the motion to dismiss must be sustained. The case was finally disposed of upon its •merits, when the motion for a new trial was overruled, and judgment entered in favor of the appellee in February, 1880, •and as the appeal was not taken within a year from that time, it can not be entertained. The appeal is not from the ruling made on the motion in October, 1883, for that ruling was in favor of the appellants, but from the judgment rendered in February, 1880. The decision of the trial court upon the merits of the case was made at the date last mentioned, and not in October, 1883, when the motion of the appellants was sustained. Appeal dismissed.