#### Henry Bernhard v. James W. Brown.

Practice—BUI of Exceptions—Insufficient Record—Due Bill for Flour —Rehearing—Rule—Stipulation.

1. In an action upon a due bill calling for a certain quantity of flour, the record in several respects being defective, this court declines to interfere with a judgment for plaintiff.

2. This court will not consider a cause upon its merits, where the record fails to show an exception to the judgment of the trial court, or a motion for a new trial entered.

3. Neither such omissions, nor the rule of this court touching rehearings can be waived by stipulation.

[Opinion filed June 15, 1889.]

Appeal from the Circuit Court of Effingham County; the Hon. William C. Jones, Judge, presiding.

Messrs. E. N. Rinehart and S. F. Gilmore, for appellant.

Mr. William B. Wright, for appellee.

Per Curiam.

The record in this case is not certified to by the circuit clerk nor does the bill of exceptions contain the due bills and receipts upon which the claim for judgment is based. We have before us in this case a record not certified to by the clerk, a bill of exceptions certified to by the judge, with nothing but the bill of exceptions to show the judgment. So far as the judgment is shown there was no exception to the same or motion for new trial. With the record in this condition, we must affirm the judgment without considering the merits of the cause.

The judgment is affirmed.

Judgment affirmed.

*386[On petition for rehearing. Opinion filed August 29, 1SS9.]

Per Guriam.

This petition for rehearing comes too late under the rules of this court, to be considered. Counsel for appellee, however, seeks to avoid the rule of court by consenting to a rehearing. Consent of counsel for appellant and appellee can not, however, avoid the fact appearing on this record, that the judgment of the Circuit Court was not excepted to, nor a motion for new trial entered. One or the other must be shown to give us jurisdiction to hear and determine a case on its merits. That can not be waived by counsel, nor can we recognize the right of counsel to waive the rules adopted by this court with reference to rehearing. This motion for a rehearing is dismissed.

Motion dismissed.