*189On Rehearing.
(Submitted April 22, 1921. Denied May 23, 1921.)
MR. JUSTICE REYNOLDSdelivered the opinion of the court.
[8] In the original opinion in this case it was stated that “The default was prematurely entered, was without jurisdiction, and the judgment which followed was likewise without jurisdiction and void.” While under the facts stated in the opinion it was error to prematurely enter the judgment, yet such entry was not without jurisdiction, but was error within jurisdiction. It was voidable but not void. (23 Cyc. 745; 12 Cyc. 755; 2 Freeman on Judgments, pars. 532, 542; Cook v. Mix, 10 Conn. 565; Drew v. Claypool, 61 Mich. 233, 28 N. W. 78; Anheuser-Busch Brewing Assn. v. McGowan, 49 La. Ann. 630, 21 South. 766; Mitchell v. Aten, 37 Kan. 33, 1 Am. St. Rep. 231, 14 Pac. 497; People v. Dodge, 104 Cal. 487, 38 Pac. 203; O’Rear v. Lazarus, 8 Colo. 608, 9 Pac. 621; Remnant v. Hoffman (Cal.), 11 Pac. 319; Gwillim v. First Nat. Bank of Colorado Springs, 13 Colo. 278, 22 Pac. 458; Ross v. Wellman, 102 Cal. 1, 36 Pac. 402; Hole v. Page, 20 Wash. 208, 54 Pac. 1123.)
[9,10] On rehearing, the question considered is the right of this court to review, upon the record as submitted, the error of the court in prematurely entering judgment. There is nothing in the judgment-roll showing the premature entry of the judgment, but it is in all respects fair .upon its,face. After judgment was entered a motion, supported by affidavits, was made to vacate the default and judgment on the ground that the same had been prematurely entered. The motion was denied and bill of exceptions was settled upon this motion; no appeal, however, was taken from the order of the court denying the motion, but appeal was taken from the judgment only. Appellants contend that even though the bill of exceptions was *190settled in connection with the motion, yet, inasmuch as the bill of exceptions points out the premature entry of the judgment, it reveals an error made by the court before judgment, and therefore is available to them on the appeal from the judgment. In support of this contention, the appellants rely largely upon the statute defining what constitutes the record on appeal, being section 7112, Revised Codes, which reads as follows: “On an appeal from a final judgment, the appellant must furnish the court with a copy of the notice of appeal, of the judgment-roll or of such parts thereof as may be necessary to be considered on the appeal, and of any bill of exceptions upon which the appellant relies. Any statement of the case settled after the decision of the motion for a new trial, when the motion is made upon the minutes of the court, as provided for in section 6796 (1173), or any bill of exceptions settled as provided for in section 6787 (1154) or in section 6788 (1155), or used on the motion of a new trial, may be used on appeal from a final judgment equally as upon appeal from the order granting or refusing a new trial.” The particular language relied upon is found in the first sentence, in which it is stated that appellant must furnish the court with a copy of the judgment-roll and of any bill of exceptions upon which the appellant relies. The statute provides that immediately after entering judgment, the clerk must attach together and file certain papers therein mentioned, including all bills of exceptions taken and filed, which shall constitute the judgment-roll. (Rev. Codes, see. 6806.) It is argued that, inasmuch as the statute includes within the judgment-roll all bills of exceptions taken and filed, and inasmuch as the legislature provided in section 7112 that the record On appeal shall consist of the judgment-roll and any bills of exceptions upon which the appellant relies, it intended to include any bills of exceptions so relied upon, no matter when or for what purpose it was settled, and that therefore a bill of exceptions prepared upon motion to vacate default and judgment is such a bill of exceptions as is so contemplated. However, in determining *191this question it is necessary to consider the whole of section 7112. It is to bé noted that in the latter part of the section it is provided that “any bill of exceptions settled as provided for in section 6787 (1144) or in section 6788 (1155), or used on the motion of a new trial, may be used on appeal from a final judgment equally as upon appeal from the order granting or refusing a new trial.”
It must be remembered that the judgment-roll must be made up immediately upon the entry of the judgment, and it therefore can contain only such bills of exceptions as were on file at the time of the entry of the judgment. Section 6788 provides that bills of exceptions may be settled after judgment, covering matters occurring upon the trial. Such bills of exceptions, not being filed at the time of the entry of the judgment, cannot be deemed a part of the judgment-roll; but, inasmuch as they contain exceptions to the proceedings before the entry of judgment, they are material in considering any appeal from the judgment. Reading the section 7112 in its entirety, it is our opinion that it was the intention of the legislature in providing for judgment-roll and bill of exceptions, to include only such bill of exceptions as was settled under either section 6787 or 6788. As the bill of exceptions in question was not settled under either section, nor used on a motion for new trial, it cannot be used on appeal from the judgment.
Appellants have also cited in support of their contentions the case of Foley v. Foley, 120 Cal. 33, 65 L. R. A. 147, 52 Pac. 122, but the cited case is not applicable. In that case the motion to set aside default was made before judgment, and under the statutes of California no appeal could be taken from the order overruling such motion. In this case, however, the motion was made after judgment and the order denying the motion is an appealable order. (Rev. Codes, sec. 7098.) If this court should consider a bill of exceptions made on motion to set aside judgment and default on an appeal from the judgment, then such action would to a great extent nullify the *192provisions of the statute providing for appeal from orders made after judgment. As appellants had a clear right of appeal from the order denying their motion to set aside default and judgment, it would be improper for this court to consider the matters shown upon such motion when no appeal had been taken from the .order.
We are reluctant to refuse to consider matters which appellants have attempted to bring before this court in a bona fide effort to present alleged errors for review, but it is not a question of our disposition in the matter, but a question of the power or lack of power of this court. Where the rules of practice are clear and unambiguous, such as exist in regard to the right of appeal from an order vacating judgment and default, we do not feel that this court should step aside from the issues properly presented to save appellants from the results of their action in mistaking their remedy. It is the conclusion of the court upon review of the above-mentioned statutory provisions that, on appeal from the judgment, matters contained in the bill of exceptions cannot be considered.
We therefore are compelled to reverse the order heretofore made and affirm the judgment.
Affirmed.
Mr. Chief Justice Brantly and Associate Justices Cooper and Holloway, concur. Mr. Justice Galen, deeming himself disqualified, takes no part in this decision.