This is an appeal from an order denying defendant’s motion for a new trial after trial by the court without a jury.

It does not appear by the return that all the evidence received at the trial is before this court. The findings of fact and the conclusion of law of the trial court are not returned and the assignments of error are insufficient to raise *526any question except that of the right of plaintiff to a dismissal of the action. In this condition of the record no question is properly presented to this court for consideration and decision. We have, however, considered the two points urged by the appellant — first, that the evidence did not establish the cause of action set out in the complaint; and second, that the plaintiff was not, through any judgment lien, entitled to move to set aside a fraudulent judgment under which the property against which he claimed a lien was about to be sold — and are of the opinion that neither claim of the appellant has merit. In view of the condition of the record, a statement of the facts shown by the record out of which these questions arise is not possible.

Affirmed.