
    Wagner v. Condron.
    1. Appeal: practice: evidence wanting. The overruling of a motion for a new trial cannot he reviewed in this court, where the record fails to show that the evidence on which the ruling was made has been preserved.
    
      Appeal from Sae District Court.
    
    Monday, June 13, 1887.
    This action was brought to recover damages for an injury-alleged to have been sustained from a ball discharged from a revolver held in the hands of the defendant. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff for $1,500. The defendant appeals.
    
      S. M. E.lwoocl and Ed. R. Duffie, for appellant.
    
      Mason dk Thomas, for appellee.
   Adams, Ch. J.

The defendant moved for a new trial upon the ground, as alleged, that “ the defendant was not tried to a fair and impartial jury; the juror Culp having sat on the grand jury which found an indictment against the defendant for the same acts for which a recovery is sought in this case, which fact was unknown to the defendant or her attorney, as will appear from affidavits hereto attached, and which fact the said juror concealed from the court and the defendant’s attorney upon his examination for cause.” There are set out in the abstract two copies of affidavits; one purporting to be made by the defendant Almira Condron, and the other by her attorney, and together showing the facts stated in the motion. There were also set out in the abstract what purports to be a copy of the record of the impaneling of the grand jury, showing that the juror Culp sat upon the grand jury, and what purports to be a copy of the indictment found against the defendant for the same shooting. The court overruled the motion, and the defendant assigns as error that the motion should have been sustained upon the ground as alleged. The plaintiff filed an additional abstract denying that the eyidence relied upon in support of the motion was ever filed in the case, or made a part of the record. The defendant, by an additional abstract, avers that it was filed and made of record, and appeals to the transcript.

We have examined the transcript, and have to say that it does not appear to us that any evidence was filed or made of record, except the testimony as taken down by the shorthand reporter upon the trial, and the exhibits referred to by him, and we do not find among them the affidavits in question, or entry of the impaneling of the grand jury, or copy of the indictment. The bill of exceptions does not appear to cover any of the proceedings subsequent to the verdict.

Every presumption in favor of the ruling below must be indulged; and, the record being in the condition in which it is, we have to say that the judgment must be

Affirmed.  