Haraszthy v. Horton

By the Court: The appeal, taken in April, 1873, is taken in form from an order denying the plaintiff’s motion for a continuance of the cause, and from the final judgment rendered.

1. The appeal directly from the order refusing the continuance cannot be considered, for the reason that such an order is not in itself a distinct subject of appeal. (Code Civil Procedure, Sec. 939.)

2. Nor can we, in this case, consider the propriety of the order through the instrumentality of the appeal taken from the judgment.

There is no bill of exceptions attached to the judgment roll as found in the record. That portion of the transcript relied upon by the able counsel who argued the cause here for the appellant as a bill of exceptions, is not such—it is only an extract from the minutes of the Clerk, signed by the Judge in the due course of the proceedings of the Court had from day to day during the term; but if it could be considered to be a bill of exceptions, it is wholly insufficient to present the alleged errors in refusing the continuance, because it does not contain the affidavits upon which the motion was founded, nor does it even refer to them in such a way as to identify them. “Affidavits Nos. 1 and 2,” is the only attempted identification of the affidavits used before the Court below, and we discover none of that designation.

Appeal from the order denying the motion to continue the case dismissed, and judgment affirmed. Remittitur forthwith.