The motion cannot be granted. If the appellants had filed their assignments of error in due time, upon finding that the appellee had prematurely taken out the transcript, they might have obtained another transcript of the record with their assignments of error annexed thereto, and filed the same in this Court.
The motion being disposed of, we are asked to reverse the judgment without an assignment of errors, because there is no cause of action presented in the original petition, and there was no service of a copy of the amended petition which presents a new cause of action. It is very much doubted whether this judgment could be sustained, having been entered as a judgment by default in form, if it did not sufficiently appear that the parties were in Court and recognized the proceedings by taking the benefit of a stay of execution. In the conclusion of the judgment it is recited that “ it is agreed between the parties, that execution shall be stayed until the first day of the next Term of this Court.” This entry evidences the presence of the parties and their recognition of the judgment, sufficiently to cure any defect in the proceedings, from the want of notice of the amended petition.
Judgment affirmed.