Brink et al. v. Posey et al.

Brink et al. v. Posey et al. Assignments of error, based upon the overruling of a motion to strike out certain allegations in a replication, and on the giving of instructions requested by appellee, are not brought before the supreme court by the record proper, and cannot be considered without a bill of exceptions. Appeal from, District Court of San Juan County. Mr. Henry Ford, for appellants. Messrs. Taylor and Ingersoll, for appellees. [MAJORITY — Rising, C. Per Curiam.] Rising, C. But two assignments of error are relied on in the argument, — one questioning the ruling of the court in overruling defendants’ motion to strike out two allegations in the replication of plaintiffs to the answer of the defendant Pendleton; and one based upon the giving of instructions asked for by plaintiffs. There is no bill of exceptions in the record; and it is urged by counsel for appellee that the errors assigned are not brought before the court by the record proper, and therefore cannot be considered. Each of the alleged errors rests upon matters which should have been made a part of the record by a bill of exceptions. As this was not done, the rulings cannot be reviewed. Wike v. Campbell, 5 Colo. 126; Heacock v. Hosmer, 109 Ill. 245; Mining Co. v. Kirtley, 8 Colo. 108. The judgment should be affirmed. De France and Stallcup, 00., concur. Per Curiam. For the reasons assigned in the foregoing opinion the judgment of the court below is affirmed. Affirmed.