
    Charles P. Chouteau et al., Respondents, v. George N. Nuckols et al., Appellants.
    
      Practice — Motions.—A motion to set aside judgment must be made part of the record by bill of exceptions, or the action of the court thereupon cannot be reviewed.
    
      Practice — Appeals.—An appeal taken at the September term, 1859, from a judgment rendered at the September term, 1856, is not taken in time.
    
      Appeal from Franklin Circuit.
    
    
      C. Jones, for respondents.
    
      D. Q. Gale, for appellants.
   Bates, Judge,

delivered the opinion of the court.

This is a suit brought to set aside a sheriff’s sale of real estate; there are a number of defendants, and on the fifteenth day of September, 1856, a judgment was rendered against some of the defendants, in its terms final, setting aside the sale, and as to the other defendants who had not appeared to the action, ordering process to be issued against them, and that the cause stand continued as to them, and it does not appear that they have ever been served with process, or any judgment rendered in regard to them.

At the September term, 1859, of the Circuit Court, some (but not all) of the defendants against whom that judgment was rendered prayed an appeal to this court, which was granted them. At the same term, and before the appeal was granted, these defendants had made motions to set aside the judgment, which was overruled, but the motions were not made parts of the record by bill of exceptions.

The appeal must be dismissed. The cause is still pending in the lower court, and, moreover, were the judgment of the fifteenth September, 1856, regarded as final, so that these defendants could appeal from it, yet their appeal was not taken in time.

Appeal dismissed.

Judge Dryden concurs. Judge Bay not sitting.  