
    Cox et al. v. Macy et al.
    
    
      ■ Appeal: transcript : original papers as substitute. "When, the statute requires a transcript of the record of a case to be sent to this court on appeal, the requirement is not complied with by filing here the original papers. And so, in an equity case, where a trial de novo was sought, and there was no agreed abstract, and appellee claimed that it did not appear that the evidence was before the court, held that the original certificate of the trial judge to the evidence could not be considered, and, there being no transcript of such certificate, the evidence must be regarded as without certification, and the appeal dismissed. And in the same case, for a like reason, held further that the original notices of appeal filed in this court, instead of copies thereof, as the law requires, could not be considered as showing that an appeal had been taken, and for that reason also the appeal must be dismissed; especially since the original notices of appeal showed that service thereof was made before the date of the judgment appealed from. (See Code, secs. 3179, 3181.)
    
      Appeal from Hardin District Court. — Hon. John L. Stevens, Judge.
    Filed, December 21, 1888.
    jAction to enjoin and restrain the collection of a tax voted by the electors of the township of Alden, Hardin county, to aid in the construction of the Forest City & Southern Railway on the ground of defectsin the proceedings and non-compliance with the conditions of the vote. A decree granting the relief prayed for was, upon a trial on the merits, rendered for plaintiffs. Defendants appeal.
    
      C. E. Albroolc and John Porter, for appellants.
    
      Taylor & Evans, for appellees.
   Beck, J.

— The case is not in a condition permitting us to examine and try it upon the merits, for the following reasons:

I. It is not presented upon an agreed abstract.' Plaintiffs allege that it does not appear that the evidence upon which the case was based is before us. There is no agreed abstract, but defendants file the original pleadings, evidence and other papers in the case, including the certificate of the evidence made by the judge trying the case. The statute requires a transcript of the records, except the evidence, ,to be sent here on appeal. Code, secs. 3179, 3181. The abstract can only be supported by the transcript when it is required by the statute to be filed in the case. This court cannot, in such case, recognize the original papers (except the evidence) as a substitute for the transcript. Defendants, therefore, do not support their claim that the evidence is all before us, which is denied by plaintiffs; We cannot consider the original certificate of the evidence filed with the other papers. It should be here as a part of the certified record.

II. For the same reason defendants fail to show that the appeal was taken, which is denied by plaintiffs. They have no transcript of the notices of appeal, as required by Code, section 3179 ; and what purports to be the original notices of appeal filed in the case show service thereof before the decree was rendered,-as stated by the papers before us. For these reasons we cannot entertain the appeal and consider the case on the merits. -It is1

Dismissed.  