
    John B. Downer, et al. vs. John P. Foulhuber.
    A judgment attacked on the ground that the evidence does not warrant the findings of fact below affirmed for the reason, 1st, that it does not appear that any “ case” containing the' evidence has been settled ; and 2d, for the reason that if it be assumed that the evidence reported in the paper book (though not found in'the return,) be a “case settled,” it does not appear that it contains all the evidence received below.
    The plaintiffs brought this action in the district court for Wabasha county, alleging in their complaint that they were the owners in fee of -certain real estate therein described, and that the defendant had.unlawfully entered upon such premises, and cut and carried away timber, &c., therefrom; and claiming damages, &c. The defendant, in his answer, denied that the plaintiffs owned the -real estate, and claimed title in himself to the lands from which he cut the timber, &c. The cause was tried before the court, without a jury, and the court found that the defendant was the owner of the land from which the timber, was cut, and ordered judgment for the defendant. The plaintiffs appeal from such judgment to this court.
    S. L. Campbell, for Appellants.
    John Yan Dyke & Son, for Kespondent.
   By the Court.

Berry, J.

This action was tried below by the court without a jury, and upon the findings judgment entered in favor of defendant. We find no notice of appeal on file, or in the paper book, but we presume that the present appeal is taken from the judgment. It is' not perceived how .any question could be made, nor do we understand that any question is made as to the sufficiency of the finding of facts to support the finding of law. The appellants’ brief does not distinctly inform us for what supposed error the judgment is attacked, but we infer (and no other inference would seem to be admissible) that it is upon the ground that the evidence does not warrant the findings of fact below. The record is not, however, in a condition which permits us to consider this supposed error, first, for the reason that there is nothing in the return or in the paper book to show that any case containing the evidence was ever settled;. and second, for the reason that if the evidence reported ill the paper book (which evidence, by the way, is not found in the return) were to be treated as a case settled, it does not appear that it is all the evidence received below.

For these reasons, and without examining the merits of the controversy, the judgment appealed from is affirmed.  