
    KLIMER et al. v. SCHNORF.
    [January Term, 1861.]
    The Supreme Court is a Court op Appellate and not Original Jurisdiction, and will not review a cause upon its merits upon an agreed statement of the evidence which not only is not referred to in the record, but appears to have been made up after the decision of the court below.
    Appeal from the second district, Carson county. The opinion states the facts.
    
      
      W. M. Steivart, for tbe appellant.
    
      S. DeWolf, for tbe respondents.
   Crosby, J.:

Tins was a suit in chancery brought in the district court for the second judicial district of the territory of Utah, to set aside a deed or bill of sale made by the above plaintiff Schnorf to the respondents Klimer et al., on the ground of fraud in its procurement.

The answer of respondents denies the use of fraud in obtaining the deed, and also denies the existence of any title in the plaintiff in the property conveyed by the deed.

No exceptions were taken in the court below, but the parties in this case, by written stipulations accompanying the record, agree that this case shall be tried in the supreme court upon the record and an agreed statement of evidence which is not only not referred to in the record, but it is apparent has been made up after the decision. This court can not entertain such evidence.

In all cases of appeal, only that can be taken into consideration which is shown by the record of the court below to have been there acted upon or referred to; otherwise the whole character of this court would be changed, and instead of an appellate it would become a court of original jurisdiction.

When there are no errors in the record, and a cause is tried on evidence, unless the contrary is made to appear, it must be presumed that the evidence was full and sufficient to justify the court in coming to its decision.

Judgment affirmed.

Kinney, C. J., concurred.  