
    Roberts v. Hamilton and Others.
    A judgment was rendered below, upon a warrant of attorney, waiving the benefit of the appraisement laws, when neither the warrant, nor the contract upon which it was based, authorized such a judgment. The defendant, without attempting to correct the error below, appealed to this Court, and, pending the appeal, the error was corrected in the lower Court.
    
      Held, that in consequence of the failure of the appellant to make any effort, in the Court below, to be relieved of that portion of the judgment complained of, he must pay the cost of the appeal.
    
      Tuesday, December 11.
    APPEAL from the Johnson Circuit Court.
   Hanna, J.

At the March term, 1859, the appellees filed their complaint against the 'appellant, who thereupon, by-power of attorney, authorized one, &c., to confess a judgment for, &c., and to waive all error and right of appeal, &o.

The Court rendered a judgment for the amount confessed, and that it be collected without relief, &c. Neither the contract nor the warrant of attorney waived relief, &c. The defendant made no motion in the Court below to be relieved from that portion of the judgment, but appealed to this Court. Before the case was submitted here, the plaintiffs procured the judgment below to be amended. The question made by parties here, now is, who shall pay the costs of the appeal to this Court, under these circumstances?

We are of opinion, that, in consequence of the failure of the appellant to first make an effort, in the Court below, to be relieved from that portion of the judgment now complained of, he should pay the cost of the appeal. He did not, in any manner, bring that error to -the attention of the Court, to have the question reviewed, or again passed upon, so that the record might show the fact that the attention of the Court had been directly called to the ruling on the point indicated.

Q. M. Overstreet and A. B. Hunter, for ajipellant.

T. W. Woollen, for appellees.

Per Curiam.

The judgment is affirmed, with costs.  