¶1We are asked to dismiss this appeal on the grounds:
¶2First — That there is no order of appeal or return day fixed by the court below.
¶3The motion for an appeal with the usual order appended is in the record and we might consider this insufficient, as we have before held, because the minutes of the court below should show that the order was allowed ; but in this case we find it stated elsewhere in the record by tbe judge, that he did grant the order, and we are not disposed to make an appellant suffer for such neglect of duty by the clerk of the district court.
¶4Second — -The suspensive appeal taken by the appellant was dismissed by the lower court and no subsequent appeal has been taken.
¶5A suspensive appeal was allowed, but the bond was not filed until more than ten judicial days afterthe judgment was signed. The bond being for the amount fixed by the judge, the only penalty incurred by the appellant was the right of the appellee to issue execution and the appeal to operate simply as a devolutive one. The ex parte order setting aside the appeal, under the circumstances, did not divest this court of jurisdiction.
¶6*98The third ground is the corollary of the others and is of no avail.
¶7The motion is refused.
¶8On the merits we see no reason for disturbing the judgment. It was rendered on default and we think the evidence sustains the confirmation thereof. The court a qua did not err in refusing the evidence o.ffered on the hearing of the rule for a new trial.
¶9Judgment affirmed.