By the Court,
Paine, J.This was an appeal from an order refusing to strike from the files a' judgment roll. The return consists of a bill of exceptions containing the affidavit used on the hearing and reciting the facts that an order was made, but there is no certified copy of the order, as required by sec. 5, chap. 139, R. S., 1858. There have been several affidavits filed outside of the record, among which is one by the attorney for the appellants stating the reasons why he did not file an affidavit of merits in the court below, and another by the attorney of record for the respondent stating that the attorney who appeared at the hearing of the motion was not the attorney of record, but was only employed by him for that special occasion, and that no notice of settlement of bill of exceptions had been served on him, and that his client at the time the appeal was taken was insane, and that proceedings were pending for the appointment of a guardian. This method of presenting matters on appeal is a little unusual, though perhaps, under the circumstances, the latter affidavit was properly presented.
*443We have concluded to dismiss the appeal, for want of such a return as the statute requires.
The appeal is dismissed with costs.