
    George W. French, plaintiff in error, v. Martha L. English, defendant in error.
    1. Practice in Supreme Court: dismissal of actions., Where judgment was rendered May 17th, 1877, and a petition in error was filed in the supreme court, December 13lh, 1877. Held, on a motion to dismiss for want of jurisdiction, that the motion must be sustained.
    2. -: -. Cases may arise where it would be proper to set up the limitation by answer; but where it appears on the face of the papers that they were not filed within the time prescribed by the statute, the defect may be taken advantage of by motion.
   Maxwell, J.

This is a motion to dismiss the cause on the ground that the petition in error was not filed within six months from the date of the judgment, the judgment being rendered May 17th, 1877, and the petition in error being filed December 13th, 1877.

The act to amend section 592 of the code of civil procedure, approved February 24, 1875, provides that “no proceeding for reversing, vacating, or modifying judgments or final orders, shall be commenced unless within six months after the rendition of the judgment or making of the final order complained of. Laws 1875, p. 40.

Cobb (& Marquett for the motion.

S. B. Galey and James E. PMlpott, contra.

The act approved February 15, 1877, extended the time to one year. Laws 1877, p. 14.

Section one of an act approved February 21, 1873, provides “that every act- passed by the legislature, which contains no provisions as to the time when it takes effect, shall take effect and become a law from and after the first of next June.” Gen. Stat., 1056.

As the act of 1877 was not in operation at the time the judgment was rendered, and more than six months having elapsed before the cause was filed in this court, the motion to dismiss must be sustained.

It is claimed that the objection can only be made by answer setting up the statutory limitation. Cases may arise where it would be proper for a party to file an answer setting up the limitation. But where it appears on the face of the papers that they were not filed within the period prescribed by statute, the defect may be taken advantage of by motion. The motion to dismiss is sustained.

Judgment accordingly.  