delivered the opinion of the court:

This was a prosecution before the police magistrate of the city of Monmouth, in the county of Warren, for a violation of certain ordinances of that city. The magistrate found the defendant guilty and rendered a judgment against her, from which she took an appeal to the Circuit Court, executing the appeal bond before the magistrate. The transcript and papers were duly sent up to the Circuit Court on the 2d day of June, 1863, the conviction having been had on the 28th day of May preceding.

When the cause was regularly called for trial in the Circuit Court, at the October term thereafter, and no person appearing for the appell ant, the appeal was dismissed and a procedendo ' awarded.

At the same term, the defendant entered her motion to set aside this order of dismissal and reinstate the cause on the docket, which motion the court denied, to which the defendant excepted, and appealed to this court.

The motion to set aside the order dismissing the appeal was based upon the affidavit of appellant’s attorney, that he had been “watching” the ease, and had gone out of court a short time when other business was occupying the attention of the court, when he afterwards understood the case was called up, and defendant defaulted, and as soon as he discovered this, he made the motion to set aside the default.

The record shows that the cause was not called up out of its order, but was called for trial, and no person appearing for the appellant, the court could not do otherwise than dismiss the appeal. The appeal having been perfected before the magistrate, it was not necessary a summons should have issued to the appellee. The party appealing is bound to follow up his appeal, and so is the appellee as in an appeal taken from the Circuit Court to this court. Boyd v. Kocher, 31 Ill., 295.

We do not perceive that the act of 1861 changes this rule, the position in which this case stood being considered. It was regularly called for trial, and no appearance by the appellant.

The affidavit on the motion to set aside the default does not show any merits. In such motions, the court has a discretion to grant or refuse them, and its action on the motion cannot, therefore, be assigned as error. Ferguson v. Miles, 3 Gilm., 363.

The point is not made here, as to the propriety of dismissing the appeal where the docket fee is not paid by appellant, so as to entitle him to place "his cause on the docket. In the case of Edwards v. Dooling, decided at Springfield, January term, 1865, this court held, where the docket fee was paid by appellee, for the purpose of placing the cause on the docket, it was irregular to dismiss the appeal before a rule nisi is taken against appellant to the effect, if he did not refund the docket fee to appellee, by a day named, the appeal should be dismissed.

Perceiving no error in the record, the judgment is affirmed.

Judgment affirmed.