Preston v. Hale

The appellants have taken this appeal for the purpose of securing a trial de novo. Their abstract purports to contain all the evidence introduced or offered, and is sufficient in that respect. It does not expressly show that the evidence was made of record, but our practice is to assume that it is so claimed, and that the claim is well founded, in the absence of any showing to the contrary. The appellee, however, has filed an additional abstract, as an amendment to the appellant’s abstract, in which he denies that the evi - dence was made of record, and it seems to be undisputed that such was the fact at the time the additional abstract was filed. Afterwards the appellants, as we infer, procured the evidence to be certified, but not until the period of six months had elapsed which was'allowed for an appeal. The statute provides that the evidence in an equitable action shall be certified *410by tlie judge within the 'time allowed for an appeal. Acts of the Ninteenth General Assembly, chapter 35. (McClain’s Supp., § 2742, p. 185.)

The appellants file affidavits tending to show that the appellee agreed to an abstract of tbe evidence, and virtually agreed to waive tbe certification of tbe evidence; and, while this is denied by the appellee, we are inclined to think that according to a preponderance of tbe evidence such is the fact. We are precluded, however, by statute from finding such fact upon affidavits as the only evidence. Code, § 213. In this condition of the record we are unable to reach the merits of the case; and the decree must stand.

Affirmed