
    No. 12,873.
    Kleyla v. The State, ex rel. Hobbs.
    Bilí 03? Exceptions. — “ Testimony " not Synonymous with “ Evidence.”— Practice. — A statement in a bill of exceptions that “this was all the' testimony given in the cause ” does not show that it contains all the evidence given, and questions which are based upon the evidence will not be considered on appeal.
    From the Tipton Circuit Court.
    
      J. Jones, for appellant.
    
      J. P. Kemp and J. N. Waugh, for appellee.
   Elliott, J.

The appellant assigns for error that the court erred in overruling his motion for a new trial. The motion, states as reasons for a new trial:

“ 1st. The finding of the court is contrary to law.
2d. The finding of the court is contrary to the evidence.”

It is manifest that the questions sought to be presented can not be considered unless all the evidence can be regarded as in the record.

Appellee’s counsel press the point that as it is stated in the bill of exceptions that this was all the testimony given in the cause,” and as there is no statement that “ this was all the evidence given in the cause,” we can not consider the evidence as in the record. The authorities require us to yield to this contention. The word “ testimony ” is not synonymous with the word “ evidence.” Harvey v. Smith, 17 Ind. 272; Brickley v. Weghorn, 71 Ind. 497, and cases cited; Sessengut v. Posey, 67 Ind. 408.

Filed Oct. 13, 1887.

Judgment affirmed.  