
    [Filed October 28, 1890.]
    L. F. CHEMIN, Appellant, v. CITY OF EAST PORTLAND, Respondent.
    Apeeaít-Jostipication op Sureties — Power op Court to-Shokten Time. — The eoart below had no power to shorten the time allowed by law for the justification of sureties on' appeal, and when the transcript was filed in this court, before the time fixed by law for such ju-lification, the same must be stricken from the docket.
    Appeal from Multnomah county: L. B. Stearns, judge.
    The final decree in this case was rendered on the thirtieth: day of September, 1890. On the same day the appellant served his notice of appeal, and filed his undertaking on appeal. On the sixth day of October, 1890, the respondent excepted to the sufficiency of the sureties and served notice thereof upon appellant’s counsel, who thereupon gave notiee that the sureties would appear at once to justify.
    On the same day the appellant and respondent appeared in open court, and after hearing the appellant’s application, the court made an order shortening the time for the justieation of the sureties from ten days to two hours. At the time fixed by the court for such justification, being October 6, 1890, at the hour of 3:30 P. M. of said day, the appellant produced his sureties in open court, andrespond-ent’s counsel, though present, declined to examine as to their qualifications and thereupon the court adjudged them sufficient. On October 7, 1890, the transcript was filed in this court.
   Strahan, C. J.,

delivered the opinion of the court.

The respondent has filed a motion to dismiss the appeal and also to strike the case from the docket. The only question material to be considered is whether or not the ease should be stricken from the docket, and that depends on the effect of the order of the court below shortening the time within which the sureties were required to justify. Section 524, Hill’s Code, authorises the court, when notice' of a motion is necessary, to prescribe a shorter time than ten days, by ail order endorsed on the notice; but the Code does not empower the court to shorten the time fixed by law for the justification of the sureties on appeal. In this case the appeal was not perfected when the transcript was filed in this court, and the motion to strike the case from the docket must be allowed. Callahan v. Portland, etc., R. R. Co., 17 Or. 556.

The appellant may have leave to withdraw his transcript.  