
    Ladnier v. Ingram Day Lumber Co.
    [84 South. —,
    In Banc.
    No. 21221.]
    1. Appeal and Error. Consent of trial judge necessary to amendment of hill of exceptions.
    
    A bill of exceptions can be amended only with the consent of the trial judge.
    2. Appeal and Ebbor. Proceedings on petition to amend exceptions should not he included in record.
    
    A petition praying for permission. to amend a bill of exceptions and the proceedings thereon when overruled by the trial judge should not be embraced in the record on appeal to the supreme court.
    Appeal from the circuit court of Harrison county.
    Hon. D. M. Graham, Judge.
    Action between Clozelle Ladnier and the Ingram Day Lumber Company. Judgment for the latter, and the former appeals.
    Motion of appellant to be allowed to amend the bill of exceptions overruled, and motion of appellee to strike out part of record sustained.
    
      
      T. M. Evans, for appellant.
    
      White- (§ Ford, for appellee.
   Smith, C. J.,

delivered the opinion of the court.

During the progress of the trial in the court below a special bill of exceptions was taken by the plaintiff putting on the record certain rulings made by the trial judge. After the adjournment of the court the plaintiff petitioned the trial judge for permission to amend this special bill of exceptions in certain particulars, which petition was heard on notice to the defendant and was overruled. This petition, together with all of the proof and proceedings thereon, has' been certified to this court by the clerk of the court below as a part of the record. Counsel for the appellee have filed a motion requesting us to strike this petition and the proceedings thereon from the record on the ground that it is no proper part thereof. This motion is resisted by counsel for the appellant, and he has filed a counter motion, requesting us to amend the bill of exceptions in accordance with the prayer of the petition filed by him in the court below.

A bill of exceptions can be amended only “with the approval of the trial judge.” Section 799, Code of 1906: section 587, Hemingway’s Code. Consequently the order of the trial judge declining to amend the bill of exceptions as prayed for by the appellant is final and conclusive, so that the motion of the appellant to be allowed to amend the bill of exceptions in this court must be and is overruled.

The cause must be tried here on the bill of exceptions approved by the trial judge, and. the petition for the amendment thereof and the proceedings had before the trial judge thereon cannot be looked to by this court in deciding the cause, and should not have been embraced in the record thereof. The motion of counsel' for the appellee to strike the same from the record will be sustained.

Sustained.  