delivered the opinion of the court.

This is a motion to strike from the files a paper styled “Statement of Facts,” signed by E. S. Hall, special judge, and to affirm the judgment of the court below. This ‘ ‘ Statement of Facts ” is an original paper, and not a copy of a paper filed in the court below and certified to us by the clerk thereof. The record contains no bill of exceptions, and we presume this ‘ ‘ Statement of Facts ’ ’ is-intended to take the place thereof. Counsel for appellant in their brief state that this cause was tried in the-court below by Hon. E. S. Hall, as special judge, by agreement, “without a stenographer, on an understanding and agreement between counsel for appellant and appellee that in case of an appeal to this honorable court an agreed statement of facts would be written out and signed, and be made the record of evidence in the case,, and that, in case an agreement as to the facts introduced in testimony could not be reached, Hon. E. S. Hall, special judge, should prepare and sign a statement of facts, which should become a record of the evidence in the case.”

*498No such agreement appears in the record nor has any such been filed among the papers in this case. In so far as the record discloses, the cause was tried by the regular judge. Moreover, even under the agreement claimed, the statement of facts should have been filed with the clerk of the lower court, to be certified to this court, in the absence of a further agreement that it might be filed in this court in the first instance.

The motion to strike the “Statement of Facts” is sustained, and, since the only error assigned by appellant, upon which he seeks a reversal of the judgment of the court below on the merits, arises on the evidence, it will be useless to retain the cause on the docket without a bill of exceptions, and therefore the motion for judgment affirming the judgment of the court below is also sustained.

Affirmed.