Such failure, however, does preclude the consideration by this Court of the transcript of the proceedings had and testimony taken at the trial. See The Employers' Liability Assurance Corporation v. Hartford Accident and Indemnity Company, 151 W. Va. 1062, 158 S.E.2d 212; Pettry v. Chesapeake and Ohio Railway Company, 148 W. Va. 443, 135 S.E.2d 729; and Davis v. Phillips, 140 W. Va. 280, 83 S.E.2d 699. An examination of the record in the instant case readily reveals that the errors upon which the appellant relies concern evidentiary matters, the pertinency of which to the appeal can be determined only by a consideration of the transcript of the testimony.

In the opinion in Pettry v. Chesapeake and Ohio Railway Company, 148 W. Va. 443, 135 S.E.2d 729, in discussing the use of a transcript under Rule 80(c), this Court said: "If the transcript is to be used by the trial court only and not used for appellate purposes no notice is required to be given to any parties." If, however, Rule 80 (c) applied to a summary judgment proceeding, as it does not, lack of notice of the filing of the transcript would not deprive this Court of jurisdiction to grant an appeal from the judgment although upon the appeal this Court would not have jurisdiction to consider matters which must be made a part of the record by a proper transcript of the proceedings. See Pettry v. Chesapeake and Ohio Railway Company, 148 W. Va. 443, 135 S.E.2d 729; Davis v. Phillips, 140 W. Va. 280, 83 S.E.2d 699; State v. Tate, 125 W. Va. 38, 22 S.E.2d 868; Given v. Diamond Shoe and Garment Company, 84 W. Va. 631, 101 S.E. 153; Dudley v. Barrett, 58 W. Va. 235, 52 S.E. 100. For the reasons stated the motion of the plaintiff to dismiss this appeal as improvidently awarded must be and it is denied.

When required to be used for appellate purposes, a bill of exception or certificate in lieu thereof is necessary to give an appellate court jurisdiction to consider the matters which must be made a part of the record by proper bill of exceptions or certificate in lieu thereof. Davis v. Phillips, 140 W. Va. 280, 83 S.E.2d 699. In any case in which a bill of exception or certificate in lieu thereof is necessary, the failure to obtain such bill or certificate of exception is jurisdictional and may be raised by the parties or the court on its own motion.

" (Italics supplied.) Davis v. Phillips, 140 W. Va. 280, 283, 83 S.E.2d 699, 700. In the case of Smith v. Withrow, 129 Va. 668, 106 S.E. 694, the Court held: "In the absence of the affidavits upon which the trial court relied when it set aside the verdict of the jury, this court must presume that such action was correct, and the verdict properly set aside."

Without any evidence on that point, we can not assume that the evidence showed, or did not show, that the officer had a valid warrant for the arrest of defendant. In Davis v. Phillips, 140 W. Va. 280, 83 S.E.2d 699, this Court held: "A writ of error granted in an action at law, the disposition of which requires consideration of evidence, no bill of exceptions or certificate in lieu thereof being found in the record, will be dismissed as improvidently awarded." The writ of error heretofore granted herein is dismissed as having been improvidently awarded.