FOURTH DISTRICT.

No. 20.

#### The People, etc., v. Joseph L. Miller et al.

The error assigned is setting aside default against defendants below. The affidavits, read on behalf of defendants in error in support of the motion to set aside the default, are not preserved by a bill of exceptions, and not being a part of the record are not properly before the court for consideration. If, however, in deciding this case the court could with propriety and in accordance with its practice examine and consider the affidavits copied by the clerk of the circuit court in the transcript of the record and commented upon by counsel for plaintiff in error in his brief, the court would feel inclined to hold them *655sufficient to justify the action of the court below in sustaining said motion and in setting aside the default upon payment of costs.

Opinion filed April 15, 1886.

Affirmed.

Attorneys, for plaintiff in error, Mr. D. W. Karraker ; for defendants in error, Mr. W. S. Day.

Opinion by

Green, J.

Judge below, B, W. McCartney.