
    
      A. Cleary v. John G. Offutt.
    Bill of Exceptions — Practice.
    Unless a rejected pleading is made part of tbe record by bill of particulars or order of tbe court tbe clerk bas no right to copy it in a transcript and .it will not be considered by tbe appellate court.
    APPEAL FROM SPENCER CIRCUIT COURT.
    April 28, 1876.
    
      T. J. Barker, for appellant. J. H. Beauchamp, for appellee.
    
   Opinion by

Judge Lindsay:

The answer which appellant proposed to file is not made a part of the record. A paper purporting to be a copy thereof was incorporated in the record by the clerk, but that paper cannot be considered by this court. Unless a rejected pleading is made a part of the record, by order of court, or bill of exception, the clerk has no right to copy it in a transcript intended for this court. We cannot therefore determine whether or not appellant had a just or legal ground of defense, or that he was other than a nominal party to the action.

Besides, his affidavit states merely that he was kept away from court by sickness. He does not state that he or any one of his family was sick, nor that he was unable to get to the court house, or that any one was sick enough to need his attention.

The action of the circuit court in refusing to set aside the judgment was proper.

Judgment affirmed.  