1. Appeal and Error — Record — Questions Presented.
The action of the court below in overruling motion to file an amended answer cannot be reviewed on an appeal by transcript, but same must be preserved and presented by case-made or by bill of exceptions made a part of the record in order that this court may consider the same.
2. Motion for Judgment on Pleadings Sustained.
From an examination of the record the trial court properly sustained motion for judgment on the pleadings.
(Syllabus by Hooker, C.)
Opinion by HOOKER, C.
The plaintiff in error brings this case to this court by transcript of record. The record here consists of petition, amended petition, answer, and judgment. Considering this record, there is no error, as the answer of the defendant did not contain facts sufficient to constitute a defense to the cause of action set forth in the amended petition, and the motion for a judgment on the pleadings was properly sustained.
There is incorporated here an amended answer which does contain a defense, but the same cannot be considered as a part of this record, for the reason that the judgment of the court affirmatively shows that permission to file an amended answer was refused by the court, and the purported amended answer was not considered. (And the motion for a new trial filed by the plaintiff in error improperly incorporated here assigns as error the refusal of the court to permit plaintiff in error to file the amended answer.) So it appears that the amended answer was never properly filed by permission or authority of the court and it cannot be considered as a part of this record. If the court erred in overruling the motion of plaintiff in error to file said answer, we cannot review its action here, for the record is not preserved and presented for review on appeal by case-made or by bill of exceptions made a part of the record.
There being no error, the judgment of the lower court is affirmed.
By the Court: It is so ordered.