
    The Indianapolis and Cincinnati Railroad Co. v. Wyatt.
    
      Saturday, June 1.
    
    Where a judgment is taken by default, in a Court of Record, the summons and the return thereon become a part of the record, but where there is an appearance and trial, these make no part of the record unless incorporated by some known mode of proceeding.
    To embody them in a written motion is not such mode.
    APPEAL from the Deeatur Circuit Court.
   Per Curiam.

Suit by Wyatt, before a justice of the peace; judgment by default. The company appealed to the Circuit Court; where a written motion was filed to dismiss the cause for want of proper service. Motion overruled and excepted to. There is no bill of exceptions embodying the writ, return and motion; and therefore it is insisted that such writ and return are not properly before us.- The writing upon which the motion to dismiss was based professes to set out the said papers. When judgments are taken by default, in a Court of Record, the writ and return thereon become a part of the record. Here there was not such a judgment, from whieh an appeal was taken to this Court. The writ and return thereon, before the justice, did not under the circumstances of this case become a part of the record of the Circuit Court, unless made so by some known mode of proceeding. To embody them in a written motion is not such mode. t The copy in said writing might be true, or not.

J. 8. Scobey, for the appellant.

James Gavin and Osear B. Hord, for the appellee.

The judgment is affirmed, with 5 per cent, damages and costs.  