It was said by counsel for the respondent, at the bar, that there was no exception to the order of the court denying the defendant’s motion for leave to answer; and that the exception noted in the record was falsely inserted after the bill of exceptions was signed. We cannot act upon such suggestions of counsel, but must take, the record as we find it, until the proper steps have been taken for that purpose, and the bill of exceptions actually corrected.
The record showing an exception, the order is a proper subject of review on this appeal. We are of opinion that the affidavit read as the basis of the motion showed a case of inadvertence or excusable neglect which clearly entitled the defendant to the relief asked, under the statute. R. S., ch. 125, sec. 38.
By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.