#### William A. Bill v. Lewis J. Mulford.

Bill of exceptions—when necessary. If a case is called and tried out of its regular order, in the inferior court, and a party desires to save the question, he must have the fact incorporated in a bill of exceptions, as the presumption will be, in the absence of proof, that the cause was called and tried in its regular order on the docket.

Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

Messrs. Eldridge &,Touetellotte, for the appellant.

Messrs. Hitchcock & Dupee, for the appellee.

*83Mr. Justice Ckaig

delivered the opinion of the Court:

This is an appeal from a judgment rendered in the Superior Court of Cook county, at the October term, 1874.

It does not appear from the record that appellant attempted to interpose any defense to the merits of the action.

It is, however, claimed that the cause was tried out of its regular order on the docket, under what is known as the “five-day rule” of the Superior Court, and upon this ground alone we are asked to reverse the judgment.

The bill of exceptions contained in the record states, that on the 19th day of October, 1874, a notice was served on the appellant that, the cause would be brought on for trial on the 26th day of October.

Ho allusion is, however, made in the notice to the five-day rule, nor to the fact that a speedy trial will be asked or had.

The record shows that a trial was had on the 26th day of October, but it fails entirely to show that the trial was had under any rule of court, or that the cause was called or tried out of its regular order on the docket.

In the absence of proof, we must presume the cause was called and tried in its regular order upon the docket.

The fact that an affidavit was filed by the plaintiff, that he believed the defense interposed by the defendant was for delay, and that a notice was served that the cause would be brought on for trial on a certain day, falls far short of establishing the position of appellant, that the cause was called and tried out of its order on the docket, or that a trial was had under a certain rule of court.

If the case was called and tried by the court out of its regular order, and appellant desired to save the question, it was his duty to have incorporated that fact in the bill of ex-c ceptions.

So far as the record shows, the trial was regular, and we perceive no error in the rendition of judgment; it will therefore be affirmed.

Judgment affirmed.