#### W. B. ELLIS v. W. B. ELLIS, Jr., Executor.

(Filed 12 November, 1930.)

Appeal and Error E a — The pleadings are a part of the record proper and when they do not appear therein the appeal will be dismissed.

Upon an appeal from the denying of a motion of change of venue only on one issue as to insanity, and the answer of the defendant giving rise to the motion not appearing of record and no brief of plaintiff filed, and it further appearing that the appeal is without merit, it will be dismissed. Waters v. Waters, ante, 667.

Appeal by plaintiff from Stack, J., at September Term, 1930, of Forsyth.

Civil action to set aside a consent judgment — the same case that was here at the last term, 198 N. C., 767.

The present appeal is from the court’s refusal to transfer the cause to Davie County for trial, “in so far as it involves the m'atter of the sanity of the plaintiff.”

The record discloses that the motion for change of venue, on the issue of plaintiff’s alleged insanity, was originally made and denied in the Superior Court of Forsyth, 1 June, 1928. It was renewed at the December Term, 1928, before MacRae, Special Judge, who first entered an order allowing the motion, but struck it out later in the term, reciting that the order of partial removal “was improvidently issued.” The plaintiff again renewed his motion at the September Term, 1930, before Stack, J., who denied it on two grounds: First, because on a preceding-day of the term, “upon the request of plaintiff and with the consent of counsel for the defendants,” the case had been continued for the term; and, second, because the same motion “had been heard and refused by a former Superior Court.”

Plaintiff appeals, assigning error.

No counsel for plaintiff.

Manly, Hendren & Wonible for defendant.

*709Stacy, C. J.

Tbe answer of the defendant, which gave rise to the motion for change of venue, is not in the record, and no brief has been filed by the plaintiff. Besides, the appeal is without merit. It will be dismissed. Waters v. Waters, ante, 667.

Appeal dismissed.