In Mаrch, 1885, a petition'was filed in the district court of Butler county to foreclose a certain chattel mortgage executed by the defendant Haynes to one J. Robert Williams, upon persоnal property of said Haynes, to secure a promissory note for the sum of two hundred and sixty dоllars and thirty cents. The following is a copy of said note:
*317 “ $260.30. David City, Nebraska, May 24,1884.
“ Aug. 24th after date, for value receivеd, I promise to pay to the order of j. Eobt. Williams two hundred and sixty and 30-100th dollars at the office of Wеstover & Williams, David City, Nebraska, with interest from maturity until paid. The undersigned further agrees to pay as liquidated damages if action is brought herein.
“No. 1,630. - (Signed) D. P. Haynes.”
It is alleged that on the same day the plaintiff purchased sаid note and mortgage of said Williams, and they were then duly endorsed and delivered. On August 24,1884, Haynes exeсuted a second note to Williams for the 'sum of two hundred and eighty-four-and 30-100th dollars, and a second chattel mortgage upon substantially the same property to secure said note. This note аnd mortgage were transferred to one C. S. Hooper.
On the 2d day of June, 1885, default was taken against Haynes, and on the 5th of that month a decree of foreclosure was rendered. On the same day on which the decree was rendered, the defendant Haynes filed a motion supported by affidavits and accompanied by an answer to open the default. This motion, on the 13th day of the same month, was overruled. Afterwards, an order of sale being issued, and the mortgaged property about to be sold, an order restraining the sale was obtained, which order, on the 27th of August, 1885, was dissоlved. The following certificate is attached to the bill of exceptions:
“ The foregoing is аll the evidence offered or given by either party on the hearing of said applicatiоn to vacate and set aside the judgment and default heretofore entered in this case, аnd on the application of the defendant D. P. Haynes this bill of exceptions is allowed by me аnd ordered to be made a part of the record in this case.
“A. M. Post,
Judge.” “ Oct. 17,1885.
“ In the district court of the county of Butler, State of
Nebraska:
“Samuel H. Steele, v. “ D. P. Haynes and C. C. Hooper.
“ BILL OP EXCEPTION'S.
“ Be it remembered that on the hearing of the aрplication to open the judgment and set aside the default hereto(fore) entered in this сause, heard in the district court of Butler county at the--term, 1885, thereof, to-wit, the 13th day of August, 1885, the applicant, D. P. Haynes, submitted the affidavits following in support of said application.” Then follow the аffidavits and other evidence and certificate of the judge. The date of final adjournment of the June, 1885, term of the district court, of Butler county does not appear in the record. On the 27th оf February, 1886, the transcript was filed in this court.
The plaintiff now moves to dismiss the appeal, 1st, Becаuse of the failure of the appellant to file an abstract and brief. 2d, Because the trаnscript was not filed in this court within six months from the date of the rendition of the decree, and, 3d, Because the order appealed from is not a final order.
This court, while it possesses the pоwer to dismiss a.n appeal in case of the failure of the appellant to preрare an abstract and brief, will, only do so where the appellant has wilfully failed to comрly with the law or it is apparent that the appeal .was not taken in good faith. . When a motiоn to dismiss is about to be made, of which the appellant has notice, it will in many cases be a sufficient excuse for the failure to prepare an abstract and brief, which, if the motion is sustainеd, would be superfluous. The first ground of the motion, therefore, is overruled.
2d, That the appeal was not taken within six months
The error, if such it was, in overruling thе application to open the decree, may be reviewed on error as well аs appeal; and where such is the case, the court; upon such terms as may be just, will permit thе filing of a petition in error. Id.
The 3d ground of objection, that the order-appealed from is not final, if applied to that dissolving the temporary order of injunction, would be correct; but the order from which the appeal is taken is for overruling the application to set aside the default and permit the defendant to answer. This, no doubt, is a final order and appealablе. Mulhollan v. Scoggin,
The appellant will have leave, within twenty days, upon the payment of all costs in this court since docketing said cause, to file a petition in error and prepare and serve an abstract and briefs, and in case of his failure to comply with this order within the time designated, the appeal will be dismissed.
Judgment accordingly.