
    No. 9630.
    Blackburn et al. v. Wagner et al.
    Bill of Exceptions. — Evidence.—Agreed Statement of Facts. — A bill of exceptions is necessary to bring to the Supreme Court the evidence adduced at a trial, although it consist of an agreed statement of the facts, unless. the proceeding be under section 553, R. S. 1881.
    From the Posey Circuit Court.
    
      S. Rhoads and H. C. Pitcher, for appellants.
    
      M. W. Pearse, A. P. Hovey and G. V. Menzies, for appellees.
   Black, C.

This action was brought by the appellants, against the appellees, to recover the possession of certain real estate in Posey county, in this State.

Issues were formed, the trial of which before the court resulted in a finding for the appellees, for whom judgment was. accordingly rendered. A motion for a new trial made by the appellants was overruled, and this ruling alone is assigned as. error.

The causes stated in the motion for a new trial were as follows :

1. The finding of the court is contrary to the law.

2. The finding of the court is contrary to the evidence.

3. The finding of the court is contrary to the law and the evidence.

The only question presented by this motion is, whether the finding was sustained by sufficient legal evidence.

That question can not be determined without an examination of the evidence.

There were two trials, the second having been obtained as of right upon the payment of costs.

At each trial, it is said in the transcript, the cause was submitted upon an agreed statement of the facts, and, in reciting the proceedings in connection with each trial, a lengthy agreed statement signed by counsel is twice set out in the transcript but there is no bill, of exceptions in'the record, without which,. this not being an agreed case, under section 386 of the Code of 1852, the statement could not be brought into the record. Martin v. Martin, 74 Ind. 207.

An interesting question is ably argued in printed briefs, but without the evidence we can not decide it.

The judgment should be affirmed.

Per Curiam. — Upon the foregoing opinion, the judgment is affirmed, at the costs of the appellants.  