delivered the opinion of the court.
The appellant herein failed to file transcript as required by law, and the appellee has brought here a copy of the judgment and notice of appeal for the purpose of having the judgment below affirmed; and moves this court for such affirmance and for judgment against the appellant, and his sureties on appeal. The uniform practice of the court has been to thus affirm the judgment against the appellant, and the only open question is as to the judgment asked against the sureties. There is a difference of opinion among the judges of the court as to the law under which the appellee has brought his case here; but we are all agreed that if it is here under provisions of *246section 461 of the Code, as counsel seem to concede, then the only thing that the court can do is to simply affirm the judgment, as it can properly have before it only the copy of judgment and the notice of appeal, and cannot know that a bond was ever given in the case.
That part of the motion asking for affirmance of the judgment against appellant granted and the remainder thereof denied.
Langford, J., and Turner, J., concurred.