
    Kelley, Respondent, vs. Kelley, Appellant.
    
      October 24
    
    November 17, 1891.
    
    
      Appeal: Bill of exceptions: Presumptions.
    
    Defendant having answered that another action was pending- between the same parties for the same cause, the trial resulted in an order or judgment for the plaintiff on that issue, with leave to defendant to answer over. On appeal, there being no bill of exceptions, it must be assumed that the evidence failed to prove the answer, and hence that the order or judgment was proper.
    APPEAL from the Circuit Court for Bodge County.
    The ease is stated in the opinion.
    For the appellant there was a brief by J. JE. Malone, and oral argument by Mr. Malone and Mr. I. O. Slocm.
    
    For the respondent there was a brief by James J. Bieh and George W. Sloan, and oral argument by Mr. Biele.
    
   LyoN, J.

The plaintiff alleges that she is the only child and sole heir at law of John Kelley, late of Dodge county, deceased, and that the defendant was the administrator of the estate of said John Kelley. The complaint charges the defendant with gross frauds in the management and settlement of the estate, by means whereof the estate was wrecked and the plaintiff deprived of her patrimony. It prays that the defendant be required to render an account of his administration; that certain items in his final account, allowed by the county court, be disallowed; and for general relief.

The defendant interposed an answer to the complaint to the effect that there was another action between the same parties for the same cause of action pending in the Dodge county court. The issue made by such answer was tried, and resulted in an order or judgment for plaintiff on such issue, with leave to the defendant to answer over. The defendant appeals from such order or judgment.

There is no bill of exceptions in the record; hence we cannot know what transpired on the trial of the issue, or what testimony was introduced. We must assume that the testimony failed to prove the answer, and hence that the court properly overruled it and gave judgment for the plaintiff on the issue thus made. The order or judgment appealed from must be affirmed.

By the Court.— It is so ordered.  