1. Bill of Exceptions: when not necessary. I. The appellee insists that the bill of exceptions was not filed within the proper time. We have ^een compelled to resort to the transcript to set-this question, and it appears from the filing 0n the back of the original bill of exceptions that it was deposited in the clerk’s office, and marked “Filed,” on the thirteenth day of January, 1886, which was within the time allowed appellant for filing the same. The record is not altogether clear about this, as counsel have procured the clerk to make contradictory certificates, and two bills of exceptions are filed in this court, each claimed to be original. But the question appears to us to be immaterial, because the plaintiff’s exceptions were duly made of record, and the question presented for our determination arises upon the pleadings, and nothing else, and the pleadings were of record, without a bill of exceptions.
2. Pleading: answer to counter-claim in injunction suit : transfer to law docket. II. The motion to strike the plaintiff’s pleading is founded on seven grounds, and the appeal is presented to us upon twenty-one assignments of error. We must decline to enter into a discussion of all the propositions submitted by counsel. The seven grounds of the motion really amount to but one, which, stated in our own language, is that tho pleading is in *261the nature of a reply to the answer of the defendants, and introduces new matter not contained in the petition, and inconsistent with the petition. The ready answer to' this position is that there was no petition of plaintiff when the ruling was made. His petition was a petition in equity. It was disposed of when the injunction was dissolved, and the cause transferred to the law docket. It is true, the plaintiff averred in his petition that the notes had been paid. This, if true, would have entitled him to a decree canceling the notes. But, when the cause was transferred to the law calendar, he had no right to proceed at law and demand a cancellation of the notes, because that was an equitable issue. More than this, it was his right to dismiss his petition; and when he did this, as the defendant still insisted on judgment on the notes, it was his right to make any legal defense thereto. It is no matter what the defendants called their pleading. It was the first pleading in the case, and was, in effect, a petition demanding judgment on the notes; and when the petition was dismissed, if not before, it is no matter what the plaintiff denominated his defense to the notes. It was in the nature of an answer and counter-claim, and was not inconsistent with any petition then pending, for there was no petition. It had been disposed of by the transfer to the law calendar, and by being expressly dismissed.
