
    Holmes and Another v. Fitch and Another.
    
      Monday, June 10.
    APPEAL from the Jaclcson Circuit Court.
    
      J. Bi. Stotzenburg and T. M. Brown, for the appellants.
    
      G. L. Dunham, for the appellees.
   Per Ouriam.

This was an action by the appellees, who were the plaintiffs, against the appellants, who were the defendants, upon a written agreement; whereby they, the defendants, agreed to deliver to the plaintiffs one thousand corn-fed hogs, none to weigh less than one hundred and -forty pounds, at a certain time and place designated, &c.; which agreement, as alleged in the complaint, the defendants failed to perform. The record contains this averment: “ Come the plaintiffs, by Dunham their attorney, and the defendants come not, but make default herein; and it appearing by the sheriff’s return of process, that all the defendants have been duly notified of the pendency of this suit, by service of summons on them more than ten days before the first day of the present term of this Court, and due proof having been made of the material allegations of the complaint, the Court finds for the plaintiffs, $4,387.” Judgment upon this finding was rendered in due form, &c. This, it will be seen, was a judgment by default. But the record fails to show that the defendants moved to set aside the default; hence the errors assigned are not properly examinable in this Court. Having failed to make that motion, they are not in position to require this Court to decide the questions arising in the record.

The appeal is dismissed, with costs.  