
    Hatfield et al. v. Chenoweth.
    [No. 4,864.
    Filed February 19, 1904.
    Rehearing denied March 10, 1904.]
    Appeal and Error. — Evidence not in Record. — Assignments in a motion for a new trial that the finding of the court was not sustained by sufficient evidence, and that the amount of recovery was too large, can not be considered on appeal where the evidence is not in the record, p. 555.
    
    Same.— When All of Evidence Not in Record. — Where it affirmatively appears that any evidence introduced is not contained in the bill of exceptions, no question depending upon the consideration of all the evidence can be decided, pp. 555, 556.
    
    From Huntington Circuit Court; R. K. Erwin, Special Judge.
    
      Action by James M. Hatfield and others against Lizzie G. Chenoweth. From a judgment in favor of defendant, plaintiffs appeal.
    
      Affirmed.
    
    
      J. T. Alexander and J. M. Hatfield, for appellants.
    
      M. L. Spencer and W. A. Branyan, for appellee.
   Black, J.

The action of the court in overruling the motion of the appellants for a new trial is assigned as error, and under this assignment it is urged that the finding of the court was hot sustained by sufficient evidence, and that the amount of recovery was too large.

lYe can not consider these matters without the evidence. There is a typewritten bill of exceptions, which formally purports to contain all the evidence; but it appears in the bill that certain papers, said to be tax receipts, were introduced in evidence, and that they are not set out in the bill. At the place where they should have been copied into the bill there is an unsigned statement in manuscript as follows :“By agreement of parties, the following synopsis of Highland’s tax receipts is substituted for the receipts.” Then follows a typewritten page, the first item being as follows: “1891. Tax sale 1891 for $91.46.” Next follow a number of columns of figures under the headings, “Year,” “Tax,” “Delinquency,” “Total,” “Pd.,” -the amount of the column under the heading “total” being set out in figures. Next are headings as follows: “Gravel Road Tax,” “Special Assessment,” under which are a number of columns of figures under the headings, “Year,” “Amt.,” “Del.,” “Total,” “Pel.,” the amount of the column headed “total” being set out thereunder in figures.

It does not appear by whom or to whom taxes were paid. Some of the evidence befoi’e the trial court is not before this court. Tn making up or in copying the bill some of the evidence shown to have been introduced was purposely omitted. The bill contains something which was not introduced in evidence, substituted for evidence which was before the trial court in making its finding. The receipts should have been set out in full as introduced in evidence. It has very often been held that where it affirmatively appears that any evidence introduced is not contained in the bill of exceptions, no question depending upon the consideration of all the evidence can be decided.

Judgment affirmed.  