HENRY W. FLEURY v. CALVIN JACKSON and W. J. TOMPKINS

HENRY W. FLEURY v. CALVIN JACKSON and W. J. TOMPKINS. Unless Notice of Appeal is Piled within One Year from the date of the rendition of the judgment appealed from, the appeal will not be entertained by the supreme court. Appeal from Order Denying New Trial can not be Sustained when the order from which the appeal is taken is not brought before this court in the record. Appeal from a judgment of the district court for the third judicial district, county of Yavapai, and from an order denying the plaintiff’s motion for a new trial. The judgment appealed from was rendered on the twenty-first day of November, 1873, and the notice of appeal was given on the tenth day of December, 1871. The other facts are stated in the opinion. Murat Masterson and Farley & Pomroy, for the appellant. John A. Rush, for the respondents. [MAJORITY — French, C. J.:] By Court, French, C. J.: The appeal from the judgment in this ease can not be entertained, for the reason that the notice of appeal, the first step toward perfecting an appeal, was not filed until more than one year had elapsed after the rendition of the judgment appealed from. The appeal from the order denying a new trial can not be sustained, because the order from which the appeal is taken is not brought before us in the record. The order appealed from should form the basis of the transcript on appeal. Comp. Laws, 437, sees. 344, 345, 348. But if the order appealed from were in the record, it would be of no avail in this case. It fully appears from the record, and the arguments in this case, that there was a defect in the testimony; that plaintiff, who appears to have had a good cause of action, continuously failed, both on the trial and on his motion for a new trial, to make his case. On the trial failing for defects of testimony, and on his motion for a new trial utterly failing to make any legal showing why a new trial should be granted, the judgment and order must be affirmed, and it has been so ordered.