
    Nevil and another vs. Clifford and others.
    
      March 2
    
    March 24, 1881.
    
    Appeal to Supbeme Court. (1) From ivhat determinations an appeal ivill lie. (2) How to procure review of refusal to admit any evidence under . complaint.
    
    
      1. An appeal will not lie from any ruling or decision of the court which is no part of the record except as made so by a bill of exceptions.
    2. Where, on the trial, an objection'to the admission of any evidence under the complaint, on the ground of its insufficiency, is sustained, the plaintiff,. if he wishes to have the ruling reversed, should not only have a bill of exceptions settled, preserving such ruling and his exception thereto, but should have judgment entered in accordance with the ruling, and appeal from such judgment.
    APPEAL from the Circuit Court for Book County.
    Eor the plaintiffs (who were appellants) there was a brief by Winans c& MeElroy, and oral argument by Mr. MeElroy.
    
    For the defendants and respondents there was a brief by EcL. F. Carpenter and Bennett <& Bale, and oral argument by S. J. Todd and J. B. Bennett.
    
   Cole, O. J.

In this case the bill of exceptions recites that on the trial the defendants’ counsel objected to any testimony being given under the complaint, which objection was sustained by the circuit court. The plaintiffs’ counsel then asked leave to amend the complaint by inserting additional allegations; but the court refused to allow any amendment further than to set up therein what was admitted in the answers. In tbe brief of plaintiffs’ counsel it is stated, that tbe appeal is from tbe order dismissing tbe complaint. But it does not appear from tbe record that any order or judgment dismissing tbe complaint has ever been entered in tbe cause. Tbe objection is taken in limine, that there is nothing from which tbe plaintiffs could appeal. Tbe objection is insuperable. Of course there should have been a judgment entered dismissing tbe complaint. No appeal lies from anything contained in the hill of exceptions and not entered of record. The practice in these cases, where an objection is taken on the trial to a pleading, in the nature of a demurrer ore temos, is pointed out in Johannes v. Youngs, 42 Wis., 401. The plaintiffs should not only have settled their bill of exceptions, preserving their exception to the ruling of the court, but should have entered a judgment in accordance with that ruling, and then have taken an appeal from such judgment.

As the record stands, it is obvious there is nothing for this court to review, and the appeal must therefore be dismissed.

By the Court. — It is so ordered.

Cassoday, J., took no part.  