The affidavit in support of this motion satisfactorily accounts for the delay in filing the transcript, and the motion would be granted if it did not appear on the face of the transcript that the appeal has not been perfected in accordance with the terms of the statute under which it is attempted to be prosecuted.
Where a party wishes to appeal a case without giving a bond for costs, he must make proof of his inability to pay the cost or any part thereof, or give security therefor, before the county judge of the county where he resides, or before the court trying the case. But in this case the affidavit relied upon as proof of the party’s inability to pay the costs or give a bond therefor, ivas not made before the county judge, or, so far as appears from the transcript, ever presented to or even seen by him. The jurat to the affidavit is attested by the clerk of the District Court which tried the case. But the transcript shoxvs this was done seventeen days after the adjournment of the court. It cannot be said, therefore, that the proof was made before the court trying the case. To warrant our saying that, the proof of inability to give bond as required by law has *571been made, would require that we should dispense with the proof required by the statute because a different character of proof may appear to ns equally satisfactory and convincing of the truth of the fact to be established. This we have neither authority nor disposition to do. It would be a palpable and direct infringement of legislative authority, and an assumption of the right to substitute our judgment for that of the Legisture in the enactment of a statute.
[Opinion delivered February 17, 1880.]Motion overruled.