1 Bur. 142 | Wis. | 1843
This suit was commenced by 8atterlee OlarJc and Henry Jones against Berry Haney, before a justice of the peace, where, in the absence of the defendant, on the return day of the writ, judgment was rendered for the plaintiffs ; from which the defendant appealed to the district court for Dane county, where he moved the court for leave to file his set-off to the plaintiffs’ demand, which was denied, and this is the error assigned.
The counsel for the defendant below, and plaintiff in error, neglected to have his motion with his proposed set-off embodied in a bill of exceptions ; and contented himself with coming here with a mere certified transcript of the records of the district court. The counsel for the defendants in error refused to argue or consider the error assigned, for the reason that the cause is not properly in this court, as the motion of the party is not a part of the record, but can only be made so by a bill of exceptions, stating the motion and the nature of the off-set proposed.
The question is thus presented : Is this motion a part of the record which this court will examine as such ? In cases at common law, the course of the supreme court of the United States is, not to consider any paper part of the record which is not made so by the pleadings, or by