
    Searcy v. Devine.
    Where the evidence is not preserved in a bill of exceptions, the supreme court cannot determine whether the court below erred in refusing to grant a new trial or not.
    ERROR to the circuit court of Perry county.
    Statement of the case, aiid opinion of the court, delivered by Tompkins, Judge.
    
      ’ Searcy brought his action in the circuit court against Devine. That court gave judgment for the defendant, and the plaintiff brings the cause here on writ of error. The error assigned is, that the circuit court refused to allow him a new trial.
    
      P. -Cole, for plaintiff in error:
    The liability of the jus'.tjcb'depends upon the question, "whether he had jurisdiction of the action against plain* tiff in error? If he had, he is not liable; if he had not, he is liable; and the circuit court erred in both points assigned for error, to wit: in refusing a new trial, and giving judgment against plaintiff in error. In the case of Odle and Clark, 2 M. R. 12, where the plaintiff had omitted to file the statement required by law to be filed, in a case before a justice of the peace, the supreme court say, the statement was necessary to give him jurisdiction, and without it, the court had no cause before it.— So in the present case, a constitutional summons legally executed, is the complaint contemplated by law; and without which, the action was clearly coram non judice. There was neither summons, nor service, nor waiver in this case; — 1 M. R. 537, Charless and Manny, Fowler vs. Watson, 1 sem. ann. Rep. page 27. That courts of limited jurisdiction are responsible under such circumstances, seems to have been long settled. Kent,in the case of Yates vs. Lansing, gives the following quotation oí authority: “We shall never know, says Lord Coke, the true reason of the interpretation of the statutes, if we know not what the law was befoi e the making of them.” Where courts of special and limited jurisdiction exceed their powers, the whole proceeding is corain non judice, and all concerned in such void proceedings, are held to be liable in trespass;—10 Coke, 67. In the case of Miller vs. Seeve, 2 Black. Rep. 1141, Lord Ch. Jus. De Gray also held the above doctrine;—5 John. Rep. 290; and Chan. Kent acquiesces— 9 John. Rep. 407; 2 Stark. E. 803, n. 1; 2 T. R. 225.
    
      J. S. Brickey, attorney for defendant in error:
    The plaintiff assigns two errors. 1st. The court overruled the motion for a new trial. 2d. That court gave judgment for the defendant, which should have been given the plaintiff. It seems to me there was no error in the court giving judgment for the defendant, upon all the evidence which is shown here to have been before the circuit court; and if there was any other or more evidence given before the circuit court, it should have been preserved, and shown to this court; and that not having been done, this court is to infer that no other evidence was given on the trial below — and that the circuit court done right in giving judgment for the defendant. As to the first point, that the court below erred in not granting a new trial, I cannot conceive on what ground (from all the evidence,) the plaintiff’ could have hiade such a motion, or have expected to have sustained it, for so far as I have been able to examine the record and evidence, there is no one circumstance shown, which goes to prove or establish the very cause of action against the defendant. And the court below, sitting as a jury, after hearing all the evidence, has found the issue for the defendant, as a jury would have done, and gave judgment for costs accordingly; and unless the plaintiff’ can shew that the court decided contrary to the evidence, and that the proof was such as to require the court to have given a different judgment, this court will not reverse the judgment of the circuit court. But on the contrary will affirm the same.
   Opinion, delivered by

Tompkins, Judge.

No facts are preserved, or attempted to be saved, by a bill of exceptions. We therefore, are not able to see in what the circuit court has committed error. Its judg-ment must-therefore,necessarily be affirmed.  