
    Johnson v. Greenleaf, Appellant.
    
    Practice. Judgment affirmed, because, 1st, It does not appear by the record that the motion in arrest was filed in proper time; 2nd,. The bill of exceptions was filed after the term, without any record consent; 3rd, The instructions not being preserved, this court cannot discover on what theory the cause was tried.
    
      Appeal from. Franklin Circuit Court. — Hon. A. J. Seay, Judge.
    Affirmed.
    
      
      Crews ‡ Booth for appellant.
    
      Hitchcock, Lubke $• Player for respondent.
   Sherwood, O. J.

Suit to foreclose a mortgage. It is impossible that we examine into the merits of this cause, for these reasons : Plaintiff' had judgment at the November term, 1875, when defendants filed their motion for a new trial, which was denied at the May term, 1876. Defendants, during that term, but when does not appear, filed their motion in arrest, which was then also denied. At the November term, 1877, defendants, without any record consent, filed their bill of exceptions. Even had the bill been filed in time, as the instructions have not been preserved, we could not discover on what theory the cause was tried. No error is discovered in the record proper. Therefore, judgment affirmed.

All concur; except Norton, J., absent.  