This action was brought for the foreclosure of a mortgage. The defendants answered, alleging that the prem*168ises described .in tbe mortgage were, at the time of the execution thereof, public lands of the United States, npon which he was living as a pre-emptor. Upon the issues thus made, upon the motion of defendant, the court entered judgment on the pleadings. The appeal is from the judgment.
The order granting the motion for judgment on the pleadings was a final decision in the action, to which an exception is deemed to have been taken under section 403 of our Code of Civil Procedure. To make this exception available on appeal it should have been settled in a bill of exceptions under section 406 of the code, and made a part of the record. (Guthrie v. Phelan, 6 Pac. 107; Guthrie v. Fisher, 6 Pac. 111; Ainslie v. Idaho World Printing Co., 1 Idaho, 641; Graham v. Linehan, 1 Idaho, 780; Fox v. West, 1 Idaho, 782; Femme v. Hays, 55 Cal. 337.)
The ruling of the court upon the motion for judgment on the pleadings not being questioned in the record, we have only to look to the complaint to ascertain whether its allegations are sufficient to sustain the judgment. (Ray v. Ray, 1 Idaho, 705; People v. Hunt, 1 Idaho, 433.)
We think the complaint is sufficient, and the judgment is affirmed. (Hyde v. Harkness, 1 Idaho, 638.)
Hays, C. J., and Broderick, J., concurring.