
    Smith & Son v. Sykes et al.
    Practice in-the Supreme Court: trial de novo: assignment of lEjmEtOHS»
    
      Appeal from Hardin Circuit Court.
    
    Friday, April 20.
    Action to foreclose a mortgage. One of the defendants, John Hall, has a mechanic’s Ren upon the mortgaged premises which he claims is paramount to the mortgage. Decree for plaintiffs, estabhshing then- mortgage as paramount. The defendant, Hall, appeals.
    
      Porter & Moir, for appeRant.
    
      Huff & Peed, for appeffees.
   Adams, J.

This action is consolidated with another action brought by said Hall to estabRsh his mechanic’s Ren. In that action Smith & Son moved for a trial upon written evidence. In this action Hall moved for atrial upon written evidence. The court denied the motion in each case, and neither party excepted. It is now objected by the appeUees that the case cannot be tried de novo. To this the appeRant repRes that all the evidence upon the trial was taken down in writing and is contained in the bill of exceptions, properly signed by the judge. But it was not ordered to be taken down, and we have held that such order is necessary to make the case triable de novo in this court.

The appeRees further object that there is no assignment of errora and that therefore the case is not triable at all. If the case is not triable de novo, it can be tried only on assignment of errors, and there being no assignment the case must be

Affirmed.  