
    [Decided January 8, 1887.]
    HENRY L. YESLER v. JOHN A. BARKER.
    Appeal — .Failure to Perfect — Judgment—Appeal Bond — Surety.— Where the appellant has failed to file a transcript, and the appellee, under section 461 of the Code, brings up a copy of the judgment and notice of appeal, and moves for an affirmance and judgment against the appellant and his sureties on appeal, the motion mil be granted as against the appellant, but denied as against the sureties.
    Error to the District Court holding terms at Seattle. Third District.
    No briefs on file.
   Mr. Justice Hoyt

delivered the opinion of the court.

The appellant herein failed to file transcript as required by law, and the appellee has brought here a copy of the judgment and notice of appeal for the purpose of having the judgment below affirmed; and moves this court for such affirmance and for judgment against the appellant, and his sureties on appeal. The uniform practice of the court has been to thus affirm the judgment against the appellant, and the only open question is as to the judgment asked against the sureties. There is a difference of opinion among the judges of the court as to the law under which the appellee has brought his case here; but we are all agreed that if it is here under provisions of section 461 of the Code, as counsel seem to concede, then the only thing that the court can do is to simply affirm the judgment, as it can properly have before it only the copy of judgment and the notice of appeal, and cannot know that a bond was ever given in the case.

That part of the motion asking for affirmance of the judgment against appellant granted and the remainder thereof denied.

Langford, J., and Turner, J., concurred.  