
    Rodahan v. Terry.
    The oral testimony adduced on the trial, being necessary to be considered in determining the questions in the case, but not being included in the judge’s approval of the brief of evidence, nor appearing to have been filed, is not properly before this court.
    May 15, 1889.
    Practice. Brief of evidence. Before Judge Harris. Carroll superior court. October adjourned term, 1888.
    Reported in the decision.
    G-. W. Bryan and G-. W. Austin, for plaintiff in error.
    W. J. & J. R. Albert and Reese & Adamson, contra.
    
   Simmons, Justice.

When this case was called for hearing, counsel for the defendant in error moved to dismiss it, because there was no approval by the trial judge of the brief of evidence sent up in the case. We refused the motion, it appearing at that time that there was an approval by the judge below of a part of the brief of evidence, to wit, that part containing the documentary evidence. We did not feel that we were authorized to dismiss the case when there was a brief of the documentary evidence approved by the judge,'as the judge may have concluded that that part of the brief was all that was material and necessary to a clear understanding of the errors complained of. After the argument of the case was concluded, and upon an investigation of the' record, we found some sixty pages of oral evidence attached to that part of the brief which had been approved by the judge, but this oral evidence was not approved, nor was it marked filed in the clerk’s office, as required by law. The orders of the judge below continuing the hearing of the motion for a new trial from time to time, show that this brief of documentary evidence was not all the evidence before the jury and the court on the trial of the case. It was also admitted by counsel for the plaintiff* in error, in the ai’gument here, that this oral evidence attached to the approved brief of documentary evidence, was had upon the trial below. The grounds of the motion for a new trial contain the usual one, that the verdict is contrary to the evidence. A large part of the other grounds complain of certain charges of-the court because there was no evidence to authorize them. The record showing that there was oral testimony taken on the trial, and it being admitted here by counsel for the plaintiff’in error that this part of the brief attached to the approved brief, but not approved, contains the oral testimony taken on the trial, we cannot determine the question made in this case without considering this oral evidence; and we cannot consider it, because it has never been approved by the trial judge. It follows, therefore, that the judgment of the court below must be . affirmed.  