Halpern v. Spencer

• Decision Date: 22 October 1898
• Citation: 47 S.W. 637
• Parties: HALPERN v. SPENCER.
• Court: Arkansas Supreme Court

47 S.W. 637

HALPERN v. SPENCER.

Supreme Court of Arkansas.

October 22, 1898.

Appeal from circuit court, Monroe county; James S. Thomas, Judge.

Action by George Spencer against Isaac Halpern. From an order striking defendant's amended answer, he appeals. Affirmed.

Manning & Lee, for appellant. Norton & Prewett, for appellee.

WOOD, J.

We are asked by this appeal to pass upon the ruling of the circuit court sustaining a motion of appellee to strike an amended answer of appellant, and in rendering judgment for appellee upon the mandate from this court. 37 S. W. 711. Neither the motion to strike nor the stricken answer are brought upon the record by bill of exceptions. That was necessary to bring the question ruled upon by the trial court before this court. Although a pleading has been filed and made a part of the record, if said pleading is afterwards stricken from the files by order of the court it is no longer a part of the record, and stands as though it never had been filed. Hence a bill of exceptions is necessary to bring the motion and the pleading which was stricken upon said motion upon the record for the inspection of this court. Hurlbut v. Manufacturing Co., 38 Ark. 594; Floyd v. McDaniel, 36 Ark. 484; Harrell v. Tenant, 30 Ark. 684; Pelham v. Page, 6 Ark. 535; other cases cited in Crawford's Dig., tit. "Appeal and Error," V. f, p. 131. There being nothing before us to show error in the judgment of the circuit court, it is affirmed.