#### C. F. Mewis, plaintiff in error, v. Johnson Harvester Company, defendant in error.

1. Practice in Supreme Court: bill of exceptions. A motion to strike a petition in error from the files on the ground, that what, purports to be a bill of exceptions cannot be so considered, will not be entertained. This objection must be taken either by a motion to quash the exceptions, or on the final hearing.

2. Bill of exceptions. In vacation a judge has no authority to allow a bill of exceptions. And if the record disclose that it was so allowed, it will not be considered.

Error from the district court of Cuming county.

*Crawford do IfoLaughlin*and *E. P.*Weatherly, for plaintiff in error.

*P. E. Stevenson*and *E. K.*Valentine, for defendant in error.

Lake, Ch. J.

The question first presented for our consideration relates to the bill of exceptions, and is decisive of the case.

I. The record discloses the fact, that on the 21st day of January, 1876, on the overruling of the motion for a new trial, the defendant below asked and obtained leave to prepare his bill of exceptions for allowance in vacation, and have it filed as of that term. Thirty days were given; but the bill was not actually allowed and filed until the 11th day of March, nearly a month after the time fixed by the court for it to be done, and during vacation.

A motion has been made to strike the petition in error from the files, for the reason that said bill of exceptions was allowed and filed in vacation. This motion must be denied. The fact, that what purports to be a bill of *218exceptions cannot be so considered, or shows no error calling fora reversal of the judgment, is no ground for striking the petition in error from the files. The office of a bill of exceptions is to bring into the record of a case those material matters which otherwise would not appear. It is not unfrequently the case, however, that very grave errors are shown, independently of the bill of exceptions. The correct practice undoubtedly is, either to raise this question by a motion to quash the bill of exceptions, or, on the final trial, by a suggestion to the court that it was not allowed within the time limited by the statute, and, therefore, not properly a part of the record of the case.

But while we cannot strike the petition from the files, the undisputed fact, that the bill of exceptions was allowed and filed in vacation, compels us to disregard it entirely in the consideration of the alleged errors. The code of civil procedure, section 308, would seem to be decisive of the matter. It provides, that “ time may be given to reduce the exceptions to writing, but not beyond the term.”

If authorities were needed to show that a bill of exceptions allowed by a j udge in vacation constitutes no part of the record of a case, they are found in the rulings of the supreme court of Ohio, the state from whence our code was borrowed. *Doe ex dem. Irvine v. Brown,*6 Ohio State., 12.

II. Referring to the petition in error, we find but a single objection to the proceedings below which did not originate on the trial. This is, that the facts stated in the petition were not sufficient to constitute a cause of action; and this is the only one of the alleged errors that we can consider.

This petition, howevei’, we find to be in the usual form followed in an action on a promissory note, and undoubt*219edly states a good cause of action. It contains all, and even more than is really necessary, under the rules of pleading given in the code.

This objection, therefore, must be overruled, and the judgment of the district court affirmed.

JüD&MENT AFFIRMED.