#### W. D. Chemical Company, Appellee, v. K. F. Thomas, Appellant.

Gen. No. 5,920.

(Not to he reported in full.)

Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh and Hon. Theodore N. Green, Judges, presiding. Heard in this court at the April term, 1914.

Dismissed.

Opinion filed July 31, 1914.

Statement of the Case.

Motion by K. F. Thomas for leave to plead to an action in which a judgment by confession had been entered against him in favor of W. D. Chemical Company. From an order denying the motion, ‘Thomas appeals.

Appellant’s motion was based upon the ground that he had a meritorious defense of fraud and failure of consideration. Two affidavits were filed in support of the motion. One affidavit stated that appellant gave an order for certain stock food to an agent that he supposed was acting for a certain company instead of for the appellee, and that appellant would not have bought the appellee’s stock food had he known of the circumstances, and further states that appellant was induced to believe certain things, without stating what was said or done to induce him to believe them, or that he had a right to rely on the representations, or who induced him to believe them. The other affidavit stated *608that he did not sign the note sued on nor authorized it be signed, and that said note was a forgery. Neither of the affidavits stated that the suit was brought to recover the price of said stock food.

Abstract of the Decision.

1. Appeal and error, § 1021 * —when judgment of confession not presented for review. On appeal from an order denying a motion to plead to an action in which a judgment by confession was entered, the judgment by confession is not properly before the Appellate Court for review where it is contained in the' record but not certified by the clerk.

2. Judgment, § 88*—when record on appeal from order denying motion to plead presents nothing for review. On appeal from an order denying a motion for leave to plead to an action in which a judgment by confession had been entered, there is nothing presented for review where the declaration and the instrument sued on are not set out in the record and the judgment of the court is not certified to the Appellate Court.

3. Appeal and error, § 990*—when ruling on motion not presented for review. Where it is assigned for error that the court erred in overruling appellant’s motion to set aside a judgment by confession, the record presents no question for review where it does not disclose that there was any motion to set aside the judgment, but rather a motion for leave to plead.

4. Judgment, § 88*—when order denying motion to plead defense not reviewahle. An order denying a motion to plead to an action in which a judgment by confession had been rendered cannot be reviewed where there is nothing in the judgment or the record to show that the case is based on a note or for what the suit was brought.

5. Appeal and error, § 952*—when motion to strilce hill of exception from files will he denied. A motion to strike the bill of exceptions from the files will be denied where it appears that it does not purport to have been so filed.

Frank A. Hall, for appellant.

Charles A. Kimmel, for appellee.

*

See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Dibell

delivered the opinion of the court.