Suit by Wyatt, before a justice of the peace; judgment by default. The company appealed to the Circuit *205Court; where a written motion was filed to dismiss the cause for want of proper service. Motion overruled and excepted to. There is no bill of exceptions embodying the writ, return and motion; and therefore it is insisted that such writ and return are not properly before us.- The writing upon which the motion to dismiss was based professes to set out the said papers. When judgments are taken by default, in a Court of Record, the writ and return thereon become a part of the record. Here there was not such a judgment, from whieh an appeal was taken to this Court. The writ and return thereon, before the justice, did not under the circumstances of this case become a part of the record of the Circuit Court, unless made so by some known mode of proceeding. To embody them in a written motion is not such mode. t The copy in said writing might be true, or not.
J. 8. Scobey, for the appellant. James Gavin and Osear B. Hord, for the appellee.The judgment is affirmed, with 5 per cent, damages and costs.