On Motion to Dismiss.

The plaintiff moves to dismiss the appeal of S. D. Maxwell, on the grounds first — that it is frivolous, and second — that the appeal bond is not given for a sufficient amount.

The first reason is not a good one for dismissing the appeal, though it may be for giving heavy damages when the case shall be tried on its merits. The second reason is not sustained by the record. So far as we can gather from any thing in the record the amount of the bond is sufficient.

Motion overruled.

On the Merits.

The plaintiff sues the defendant Maxwell as surety on the appeal bond of St. Ceran from a judgment the plaintiff obtained against the latter.

In the lower court the plaintiff had judgment in his favor, and Maxwell appealed.

The only point made in the defense seems to be that in the court below, a rule to show cause why judgment should not be entered up against the surety was filed on the sixth of November, served on the seventh and the day fixed for the hearing was the seventeenth November, ten entire days not intervening between the seventh and the seventeenth.

We see the judgment was rendered on the eighteenth of November. We think the requirements of the law have been complied with. “ The party may obtain judgment on motion after ten days notice.” Revised Statutes, section 3736, page 725.

Judgment affirmed.

Rehearing refused.