By the Oourt.

This action was decided in the Court below upon demurrer to the complaint. On the 23d of February, 1860, the Oourt made an order overruling the demurrer to the complaint, and allowing the Defendant leave to answer within twenty days after service upon him of a copy of the order. On the 29th day of February, 1860, the Plaintiff’s attorney served the order by mail, which allowed the Defendant forty days to answer, from the day of mailing the order. The forty days elapsed and the Defendant declined answering. The order then became final, and the Plaintiff was entitled to enter up judgment upon his complaint. He did not, however, enter his judgment of record until the 11th day of December, 1860. On the 18th day of April, 1861, the Defendant sued out a Writ of Error from this Court to the judgment, and the Plaintiff, Defendant in Error here, now moves to dismiss the writ as not having been taken within a year from the rendition of the judgment.

The rendition of a judgment is the actual decision of the case by the Court that tries it, and not the perfecting of that decision of record, and the time to appeal begins to run from *444the time the decision is filed by the Judge or Court. 3 Mm., R., 20'T. In this case the rendition of the judgment was conditional upon the Defendant failing to answer within the time allowed him for that purpose, and was not consummate until the expiration* of that time. The Writ of Error should have been sued out within one year from the 9th day of April, 1860, that being the fortieth day from the service of the order. Comp. Stats., 623, sec. 22. The writ was not in time, and must be dismissed.