
    A. J. McCullom, Administrator, Respondent, v. O. P. Hedges, Appellant.
    St. Louis Court of Appeals,
    February 9, 1886.
    1. Appellate Jurisdiction — Actions and Defences — Counterclaim — -Title to Realty. — A defence by way of counter-claim, to an action on a promissory note, that the note was given in part payment of land, the title to a part of which has failed, does not make a case involving title to real estate so as to give the supreme court appellate jurisdiction.
    2. Practice — New trial — Bill of Exceptions. — If the motion for a new trial is not incorporated in .the bill of exceptions, an appellate court will not review it on appeal, although itis copied into the record by the clerk.
    Appeal from the Ripley County Circuit Court. John Gr. Wear, Special Judge.
    
      Affirmed.
    
    Mills & Flitoraet, for the respondent.
   Thompson, J.,

delivered the opinion of the court,

This was an action for a balance due on a promissory note. The defendant, in his answer, admits the execution of the note, but pleads by way of counter-claim, that it was given in part payment for certain tracts of land sold by the plaintiff’s intestate to the defendant, and that, as to some of these tracts, the plaintiff ’ s intestate had no title. There was a trial before the court sitting as a jury, and the plaintiff had a verdict and judgment for the sum of $344.18, and the defendant had a verdict and judgment for one dollar, upon his counter-claim.

I. A motion is made to transfer the cause to the ' supreme court on the ground that it involves title to real estate. It is too plain for argument that this motion is not well taken, and it is accordingly overruled.

II. The motion for a new trial is not set out in the MU of exceptions, and, therefore, in conformity with a' well settled rule of practice, it can not be considered at all, though copied by the clerk into the transcript. Stevenson v. Saline Co., 65 Mo. 425. The case, therefore, stands as though no motion for new trial had been made, and the bill of exceptions can not be looked to for any purpose. Bevin v. Powell, 11 Me. App. 216.

As no error appears on the face of the record proper, the judgment will be affirmed.

Rombauer, J., concurs; Lewis, P. J., is absent.  