This is an action on a promissory note for the sum of thirty dollars, originally brought before a justice of the peace, from whose judgment an appeal was taken to the circuit court, where a judgment was rendered, in favor of the defendants, at the September term, 18G8. The Code of Practice, by which the courts of the State are now governed, had not then gone into absolute effect. We are at a loss to determine whether the appellant is prosecuting his appeal under the statute, regulating appeals before the adoption of the Code, or under it.
If under the former, this court has no jurisdiction in the case, as he has not complied with the statutory requirements regulating appeals. The old statute declares that the circuit court shall make an order allowing appeals, upon the performance of certain conditions therein specified. In the case of Berry v. Singer, 4 Eng. 129, this court say : “It is the order allowing an appeal, and not the prayer for it, that operates to transfer the jurisdiction from the circuit to the Supreme Court. This being a question of jurisdiction, no presumption can be indulged, so that although the record should affirmatively show every prerequisite had been complied with, yet no jurisdiction could attach, to this court, without an order expressly allowing the appeal.” Also, in the case of the Bank of the State v. Hinchcliff, 4 Ark. 444, the court say: “The filing of the affidavit, as required by law, constitutes a condition precedent to the right of a party to appeal.” There is nothing to show upon the record, in the case at bar, that there was either an affidavit, prayer for an appeal, or an order of court granting the appeal. • If the appellants are seeking to prosecute their appeal under the old practice, 'it is clear that this court has not acquired jurisdiction.
Under the Code there are two ways in which an appeal may be prosecuted. 1st. By a motion made during the term at which the judgment or final order was rendered. 2d. Upon application of either party to the clerk of the Supreme Court, in term time or in vacation. Sec. 859, Title XIX.
The record does not declare the fact, that there was any motion for an appeal, in the court below, nor that there has been application to the clerk of this court, to grant such an appeal.
True, the papers are marked “Piled Jan. 24, 1870,” but that does not constitute an application for an appeal. There should be a formal petition to that effect and a granting of the same by the clerk, in order to invest this court with jurisdiction to hear and determine the case on its merits; therefore, the case is dismissed.