Robert Hamilton v. A. H. McKensie, 1 Dallam 461

HEMPHILL, Chief Justice. The appellee recovered judgment against the appellant at the fall term of the court in the year 1840. No notice of appeal was given at the term of the court, and no bond filed according to the requisition of the law. The appellant, who was the defendant in the court below, made application for a writ of injunction, which was accordingly issued; but at the spring term of the court in the year 1841 the injunction was dissolved and petition dismissed for want of equity in its averments.

At that term of the court a motion was 'made to set aside the judgment rendered on the common law side of the court at its former term, and for a new trial on various grounds. The motion was overruled, and from an instrument under seal, which was doubtless intended for an appeal bond, this court is authorized to conclude that an appeal was taken. The first question which presents itself is whether the court has jurisdiction of the cause. The motion for a new trial was not made at the term when judgment was rendered, but at a subsequent session of the court.

From the examination of the provisions of our laws in relation to new trials, we are satisfied that the motion therefor must be made before the rising of the court at which judgment has been given. We are therefore of opinion that no appeal having been taken within the terms prescribed by law, we can not take into consideration any of the various matters presented on the record, and that the case should be removed from the docket, and it is accordingly so adjudged and decreed. Dismissed.