#### Kinch Tudor, Appellant, v. F. H. Phipps, Appellee.

(Not to he reported in full.)

Appeal from the Circuit Court of Moultrie county; the Hon. William G. Cochean, Judge, presiding.

Heard in this court at the October term, 1914. Rehearing denied May 26, 1915.

Affirmed.

Opinion filed April 16, 1915.

Statement of the Case.

Action of replevin by Kinck Tudor against - F. H.' Phipps before a justice of the peace. On an appeal to the Circuit Court on September 30, 1912, the court directed a verdict in favor of the defendant. On that day, on a motion for a new trial being overruled, the plaintiff prayed an appeal to this court, which was allowed upon the filing of a bond within twenty days, and a bill of exceptions within ninety days.

The common-law record made by the clerk of the Circuit Court shows that on October 21, 1912, plaintiff filed a motion to set aside the order overruling a motion for a new trial, the entry of judgment and the order fixing the time to file an appeal, bond and that a similar motion was also filed November 13, 1912. On January 9,1914, at the September term, 1913, the motions were overruled, and on January 24, 1914, the plaintiff was allowed an appeal to this court on filing a bond within twenty days, and a bill of exceptions within one hundred days. On May 4,1914, a bill of exceptions, was filed, which showed neither a motion for a new trial on September 30, 1912, nor anything that occurred subsequent to the entering of judgment on that day, other than the prayer for an appeal. Neither did the bill of exceptions contain anything as to any motions, or rulings thereon, at the March term, 1914.

The only bill of exceptions in the case was filed May 4, 1914. The time for filing a bill of exceptions given *609in September, 1912, after a final judgment had been entered, was never extended.

Abstract of the Decision.

1. Appeal and error, § 800 * —necessity of preserving ruling on motions in hill of exceptions. Where error is to be assigned, on the decision of a court upon a motion, the ruling thereon together with an exception must be preserved in a bill of exceptions.

2. Appeal and error, § 839*—when hill of exceptions stricken from the files. A bill of exceptions will he stricken from the files when not filed until after the expiration of the time granted by the court.

3. Appeal and error, § 839*—when hill of exceptions not timely filed. A bill of exceptions filed May 4, 1914, where the only order made required a filing within ninety days from September 30, 1912, does not constitute a proper appeal, where no further extension was granted and the bill does not show any subsequent motions or rulings thereon.

John E. Jennings and William M. Moran, Jr., for appellant.

Vause, Hughes & Kiger, for appellee.

*

See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, game topic and section number.

Mr. Justice Thompson

delivered the opinion of the court.