Fisher v. Ewing

Ray, C. J.

The appellant desires to present for our consideration what he contends is error in the court below, in striking out certain parts of a paragraph of íiis answer.

The bill of exceptions states the matter stricken out as follows : “ commencing at the twenty-third line of page four at the words, ‘ and the defendant further says/ the remainder of said page, and the entire page five, to the sentence concluding, ‘during which the said building was in point of fact erected.’ In other words, the motion was to strike out all that part of said answer inclusive between the twenty-third line,, on page four, and the bottom of page five, concluding as above.”

The clerk has, in a memorandum on the margin of the transcript, referred us to the answer, which he says contains in brackets the matter stricken out by the court. But up *131 on the ruling of the court, that matter no longer formed part of the answer, and the clerk could not properly bring it into this court as part of the record, and we cannot therefore regard it as before us. It should have been set out in full in the bill of exceptions. If the motion had been overruled, it would have left the matter in the record, and we might, perhaps, discover what it was by the reference in the bill of exceptions.

B. D. Pratt and D. P. Baldwin, for appellant. D. I). Bykeman, for appellee.

No other error being assigned, the judgment is affirmed, with costs.