#### Thompson and others vs. Thompson and another.

PRACTICE. *One order, in two pa/rts, on separate pieces of paper*— Single *appeal,*

1. The circuit court made an order overruling a motion *to*amend a bond filed on appeal thereto from the county court; and in such order directs that the same "shall he deemed and taken as a part of the order hereinafter to be entered to dismiss the appeal.” The order dismissing the appeal (which was'upon a separate piece of paper) had, in fact, been already filed on the same day, but by direction of the judge was put *after*the other in the record. *Held,*that the two constituted but one order for the purpose of an appeal therefrom.

3. Where an appeal may be dismissed under the rules without an application to the court (as for a failure to serve printed cases), a motion for that purpose "will not "be entertained.

APPEAL from tliG Circuit Court for *L& F&yctto*County."

*WilUam Thompson and others,*appealed to said circuit court from a decision of tbe county court of said county, admitting to probate a certain will, and adjudging costs against them as contestants. *John Thompson cmd*(mother, on whose petition said will was admitted to probate, moved to dismiss said appeal, on the-ground, among others, that tbe appellants bad not filed and served such a bond as tbe law required, to perfect tbe appeal. Tbe appellants moved for leave to file an additional bond,’ and Mr. Magoon, their attorney, filed an affidavit in support of tbe motion; whereupon the court made tbe following order: “On *625reading and filing tbe foregoing affidavit of H. S. Magoon, appellants’ attorney, upon and during tbe argument of tbe motion made in said cause by tbe respondents, to dismiss tbe appeal herein, and on full consideration, and after bearing argument * * *; and said H. S. Magoon, appellants’ attorney, having in their behalf offered and tendered in open court a new bond on said appeal, and ashed leave to file tbe same as an additional bond on such appeal; and tbe court now here having considered thereof; now, in open court, previous to signing and filing an order to dismiss said appeal, doth deteiv mine and order that tbe motion and petition to amend tbe appeal bond herein, and for leave to file tbe new appeal bond hereto annexed, *nunc pro timo,*be and tbe same is hereby in all things overruled * * *; and it is further ordered that this order shall be deemed and taken as a part and portion of .the order hereinafter to be .entered to dismiss the appeal of said contestants and appellants herein, for all purposes whatever. Dated in open court, Darlington, "Wis., May 16, 1868.”

On the same day the following order, written on a separate piece of paper, was made and filed: “ [Title.] The motion of the respondents to dismiss the above entitled appeal came on to be heard by the court, and was argued * * *; and now, being sufficiently advised * * * it is ordered and adjudged that said appeal be, and the same hereby is, dismissed out of this court.”

It seems that, although the order of dismissal was by the judge’s direction put upon the recoi d *following*that first above recited, yet it was in fact filed *before*it. \

The contestants of the will appealed from the whole decision of the court as a single order. The opposing counsel move to dismiss this appeal, on grounds which will sufficiently appear from the opinion.

*P. A. Orton, Jr.,*for the motion.

*U. 8. Magoon, contra.*

*626Paine, J.

Tbe objection that tbe appeal is from two orders instead of one, does not seem to be well taken. It is true, tbe order is written on two papers, and part of it was evidently made first, and upon tbe assumption that it would constitute an entire order by itself. But afterward, on disposing of tbe whole matter, tbe judge added to tbe order, and expressly provided that the addition should be a part of tbe former order. It must be so considered. ,

Tbe respondent was entitled to dismiss tbe appeal under tbe rule, if the printed cases bad not been served. And we have concluded, where such is tbe case, not to entertain a motion to dismiss upon that ground.

The motion to dismiss tbe appeal is overruled; but as tbe appellants’ counsel did not appear to argue tbe motion, and as it is denied on tbe ground that tbe respondents might have dismissed it without bringing tbe matter before.tbe court, it is denied without costs.

*By the Court.*— Ordered accordingly.