The motion for a new trial was properly rejected. The cause was out of court. The appellee looks at the files on the last day appointed for the return of the appeal to the clerk of the court appealed to, and finding it not there, goes home, and is the more off his guard when his judgment is affirmed. Is it possible that thus absent and unsuspecting, a motion of so much importance can be made against him and sustained ? The Circuit Court acted correctly. Could the court refuse affirmance, and after doing by affirmance what the law required, undo it, as if it were illegal ? Certainly not. If we now reverse, it will be because the court has done what the law required. A writ of error should have been taken. The appeal is for the purpose of having a new trial. Whenever this is abandoned and the judgment below affirmed, and the cause removed to this court, the question is upon the error of that affirmance, not upon errors not brought before the court.

Affirm the judgment.

See, Duncan v. McGhee, 7 Yer. 103; McDonald v. McAlister, 7 Yer. 304; Gregory v. Burnett, 1 Hum. 60; Nichols v. Colville, 1 Tenn. 2; Norwood v. Humphreys, 2 Tenn. 188; Bustard v. Cheatham, 1 Tenn. 370; Foster v. Carter, 2 Sneed, 1; Furber v. Carter, 2 Sneed, 1; King’s Digest, 5640-47.