Peck v. Vankirk

Davison, J.

This was an action, by the appellee, who was the plaintiff, against Peek, to enjoin proceedings upon a writ of execution. There was a verdict for the plaintiff; upon which the Court, over a motion for a new trial, rendered judgment.

The record shows that the cause was tried on April, 16, 1857. And that the Court, a new trial having been refused, granted the defendant leave to file a bill of exceptions, within thirty days. There is, in form, a bill of exceptions set out in the record; but it does not appear when it was filed. And, for that reason, the appellee moves the Court to strike it from the record. The code provides: “ That the party objecting to a decision, must except at the time it is made; but time may be given to reduce the exception to writing, but not beyond the term, unless by special leave of the Court.” 2 R. S., § 343, p. 115. In this instance, the leave, evidently, extended “ beyond the term,” and it seems to us, that the record ought *160 to show that the bill of exceptions was filed within the prescribed time. 12 Ind. 380 . We are inclined to hold, that a bill of exceptions is no part of the record, unless the record s^ows when it was filed. Kitchen v. Moye, 17 Ala. 143 ; Haden v. Brown, 22 id. 572. The appellee’s motion must be sustained; and the result is, there is no error in the record.

J. M. Flagg, for appellant. B. Parrett, for appellee. Per Guriam.

The judgment is affirmed, with costs.