
    (July 1, 1922.)
    W. N. McCARTY, Respondent, v. ARTHUR WARNKIN, DAVID PARKER and A. D. MERRILL, Appellants.
    [207 Pac. 1075.]
    Appeal and Error — Beporter’s Transcript not Considered Unless Settled — Absence oe Certieicate as to Papers Used on Contested Motion.
    1. Where a transcript on appeal contains what purports to be a reporter’s transcript of the proceedings at the trial, which is not settled by the trial judge, the same cannot be considered on appeal from a judgment.
    2. Where the transcript on appeal from an order or contested motion does not contain a certificate of the trial judge, clerk or attorneys, that the papers therein contained constitute all the records, papers and files used or considered by the judge making the order on the hearing of the motion, as required by C. S., sec. 7167, and Buie 24 of this court, the appeal will be dismissed.
    APPEAL from the District Court of the Fifth Judicial District, for Bear Lake County. Hon. Robert M. Terrell, Judge.
    Action on bond. Judgment for plaintiff.
    
      Affirmed.
    
    John A. Bagley, Wm. J. Ryan and Peterson & Coffin, for Appellants, cite no authorities on points decided.
    White & Bentley and H. B. Thompson, for Respondent.
    The transcript of the testimony was never settled by the court, and hence, of course, cannot be considered. (Wash
      
      ington etc. B. B. Co. v. Osborne, 2 Ida. 557, 21 Pac. 421; Minneapolis Threshing Machine Co. v. Peterson, 31 Ida. 745, 176 Pae. 99.)
    “In the absence of the evidence it is to be presumed that the verdict was supported and justified by the evidence.” (Needham v. Needham,, 34 Ida. 193, 200 Pae. 346, 348; Bergh v. Pennington, 33 Ida. 726, 198 Pac. 158; Newman v. Oregon Short Line B. B. Co., 34 Ida. 417, 201 Pac. 710.)
   RICE, C. J.

The appeal in this ease is from a judgment and from an order denying appellants’ motion for a new trial.

The record contains what purports to be a reporter’s transcript of the evidence and proceedings at the trial, which is not settled by the trial court. It cannot be considered on appeal. (Wells v. Culp, 30 Ida. 438, 166 Pac. 218; Minneapolis Threshing Machine Co. v. Peterson, 31 Ida. 745, 176 Pac. 99; Ellsworth v. Hill, 34 Ida. 359, 200 Pac. 1067.)

The transcript does not contain a certificate as to the papers used upon the hearing of the motion for a new trial. The action of the court in denying the motion is therefore not subject to review. (Biwer v. Van Dorn, 32 Ida. 213, 179 Pac. 953; Spencer v. John, 33 Ida. 717, 197 Pac. 827.)

This leaves the judgment-roll alone for consideration. No error appearing on the face thereof, as supplemented by permission of the court granted at the hearing, the judgment is affirmed. Costs to respondent.

Budge, McCarthy, Dunn and Lee, JJ., concur.  