delivered the opinion of the Court.

In a decision rendered on February 12 of the present year, on a motion to dismiss this appeal, this court said that, as it appeared that appellant’s notice electing the preparation of a transcript of the evidence by the stenographer to perfect its appeal had not been filed within the statutory time, we could not consider in this case the evidence heard in the court below. Notwithstanding this, the appeal was not dismissed, because at the time the appellee’s motion was entered in this court the appellant had already filed the judgment-roll.

Now the appellee has filed new motions to strike out the second, third and fourth assignments of error from the brief of the appellant, and to dismiss the appeal as frivolous. These motions have been opposed by the appellant.

From a consideration of appellant’s brief we- find that the assignments of error marked “Second,” “Third” and “Fourth”, are principally based upon matter of proof included in the transcript of the evidence, to which frequent allusions are made in the argument under such assignments. The appellant has doubtless forgotten what this court has declared in its former decision, and this is regrettable. If we have said that we would not consider the evidence introduced in the district court, it is because we are bound not to consider it, as the appellant did not take timely steps to procure a transcript of the evidence. To argue now on the evidence as a basis is useless. The three assignments of error in question and the argument thereon must be stricken out, and the appellant must file within ten days a new brief in accordance with our decision.

As to the first assignment of error, it relates to the allowance by the trial court of interest on the amount found due from the date of the loss. This is a debatable question, and viewed from that angle we do not consider the appeal to be frivolous.

*158The motion to strike out is granted and the appellant is allowed ten days to file an amended brief. The motion to dismiss is denied.