
    [No. 3,865.]
    ARPAD HARASZTHY and A. F. HARASZTHY, Administrators of the Estate of Charles Haraszthy, Deceased, v. A. E. HORTON et al.
    Appeal fbom Obdeb.—An appeal does not lie from an order denying a continuance.
    Review of Obdeb on Appeal.—An order denying a continuance cannot be reviewed through an appeal from the judgment, unless there is a bill of exceptions.
    Bill of Exceptions.—An extract from the minutes of the Clerk, signed by the Judge in the course of the proceedings from day to day, is not a bill of exceptions.
    Sufficient Bill of Exceptions.—A bill of exceptions to an order deny, ing a continuance, is not sufficient to present the alleged error in denying the continuance, unless it contains the affidavits used on the hearing of the motion.
    Appeal from the District Court of the Eighteenth Judicial District, County of San Diego.
    The action was ejectment. The defendants had judgment, and the plaintiff appealled.
    The other facts are stated in the opinion.
    
      
      Henry E. Highton and William Hayes, for Appellants.
    
      Levi Chase, W. T. McNealy, and W. J. Gatewood, for Respondents.
   By the Court:

The appeal, taken in April, 1873, is taken in form from an order denying the plaintiff’s motion for a continuance of the cause, and from the final judgment rendered.

1. The appeal directly from the order refusing the continuance cannot be considered, for the reason that such an order is not in itself a distinct subject of appeal. (Code Civil Procedure, Sec. 939.)

2. Nor can we, in this case, consider the propriety of the order through the instrumentality of the appeal taken from the judgment.

There is no bill of exceptions attached to the judgment roll as found in the record. That portion of the transcript relied upon by the able counsel who argued the cause here for the appellant as a bill of exceptions, is not such—it is only an extract from the minutes of the Clerk, signed by the Judge in the due course of the proceedings of the Court had from day to day during the term; but if it could be considered to be a bill of exceptions, it is wholly insufficient to present the alleged errors in refusing the continuance, because it does not contain the affidavits upon which the motion was founded, nor does it even refer to them in such a way as to identify them. “Affidavits Nos. 1 and 2,” is the only attempted identification of the affidavits used before the Court below, and we discover none of that designation.

Appeal from the order denying the motion to continue the case dismissed, and judgment affirmed. Remittitur forthwith.  