The appellee moves to affirm the judgment of the Circuit Court, and shows by the clerk’s certificate that the cause was heard on oral evidence taken in open court; that neither the notes of the official reporter who took down the evidence, nor any translation of the same, have been filed in the clerk’s office, that only part of the evidence so given was taken down by said reporter, and the rest by another person who has never certified to that taken by him, that no certificate to the evidence given, or bill of exceptions signed by the judge who tried the cause has been, or is on file in the clerk’s office.

In this state of facts a motion to strike out the bill of exceptions purporting to contain the evidence would be sustained. Lowe v. Lowe, p. 290, ante. Appellee’s motion, however, is to affirm the judgment which we cannot sustain for the reasons here appearing. The failure of appellant to have the evidence properly made part of the record is not alone ground for affirming the judgment, on motion for the record may, aside from this defect, show errors entitling the appellant to a reversal of the judgment. Appellee’s ' motion to affirm must therefore be

Overruled.