Appeal from the Eighth Judicial District.

This action was commenced in the Twelfth District Court, on the fifteenth day of April, 1856. The original complaint contained a copy of a promissory note made to plaintiff Charles E. Lattimer, by “Ryan, Duff & Co.,” August 1st, 1854, for $2,815.40, bearing interest at five per cent, per month, interest to be paid monthly, and if not so paid, to be compounded; and alleged that the defendants James F. Ryan, James R. Duff, and Frank S. Duff composed the firm of “ Ryan, Duff & Co.,” by whom the note was executed; and prayed judgment against them “ for the sum of-with interest and costs.” The summons was personally served on each of the defendants, July 2d, 1856, and specified that upon failure to answer, plaintiff would take judgment against them for the sum of $3,000, with interest thereon and costs. So further proceedings were had in the case until the thirty-first day of May, 1859, when an amended complaint was filed, also containing a copy of the note, and praying judgment for $2,815.40, with interest, which amended complaint was served upon defendants. ¡Neither of the complaints was verified.

On the fifteenth day of August, 1859, Frank S. Duff filed a separate answer to the amended complaint, denying generally aE its allegations, and specificaEy that he executed the note or was a member of the firm of “ Ryan, Duff & Co.” at the time of its execution. This answer was not verified.

On motion of defendants, September 10th, 1859, the case was transferred to the Eighth Judicial District. In February, 1860, plaintiff gave notice to take the depositions of certain witnesses residing in San Francisco, and in pursuance of the notice, the depositions were taken, and in March filed with the Clerk of the Eighth District Court. The case was placed on the Calendar for trial on the seventh day of March, 1860, and on that day the parties appeared by counsel, and waived a trial by jury, after which the counsel for plaintiff moved the Court to strike out the answers of the defendants on the ground that they were not verified; pending which motion, defendants’ counsel moved that defendant Frank S. Duff, being then present, should be permitted to verify his answer. The Court denied the motion of defendant, and granted that of the plaintiff, and proceeded to render judgment for plaintiff for $40,579 with costs.

FTo motion for new trial was made, but on the twenty-second of March, 1860, and after the adjournment of the term at which the judgment was rendered, the District Judge, on application of defendants, supported by affidavits, made an order staying all proceedings under the judgment, and at the June term following, the Court, on motion of defendants, made an order setting aside the judgment in the case, and fixing it for trial on the succeeding day, at which time the plaintiff declining to take part in the trial, on the ground that the Court had no jurisdiction to set aside the former judgment, the defendant F. S. Duff introduced his evidence ex parte, and judgment thereon was rendered by the Court in his favor, and against the plaintiff for costs. Both parties have appealed; the defendant F. S. Duff from the first judgment, rendered March 7th, and the plaintiff from the second judgment, rendered June 5th, and from the order setting aside the first judgment.

By stipulation, it was agreed that both appeals should be heard together, and judgment rendered by the Supreme Court in both at the same time.