
    [No. 5611.]
    [No. 2524 C. A.]
    The Wagner-Stockbridge Mercantile and Drug Company v. Goddard.
    1. Pleading — Replication—New Matter — Denial.
    New matter pleaded in a replication is, perforce the code, denied without further pleading.
    
      2. Appellate Practice — Bill of Exceptions — Stipulation of Facts.
    
      An agreement of facts, stipulated in writing, upon which the trial court rendered judgment, does not become a part of the record unless made so by bill of exceptions, and in- the absence of such stipulation from the record the appellate court cannot pass upon the correctness of the judgment.
    
      Error to the District Court of El Paso County: Hon. Ira Harris, Judge.
    
    Mr. F. W. Dustin and Mr. W. K. Brown, for plaintiff in error.
    Mr. H. McGarry, for defendant in error.
   Mr. Justice Gunter

delivered the opinion of the court.

Action of claim and delivery. .Defendant, as sheriff, justified under an execution running against a third party. An issue of fact was thus raised. The replication pleaded a discharge in bankruptcy of the judgment debt upon which the execution relied on as a justification had been issued. The new matter presented by the replication was, without further pleading by defendant, perforce the code, denied.— Mills’ Ann. Code, sec. 71; Borcherdt v. Favor, 16 Colo. App. 406, 415.

An issue of fact was presented by the replication. The evidence as to the issues of fact raised by the answer and replication was presented to the court by counsel stipulating in writing as to the facts. The court entered judgment for the defendant.

We cannot pass upon the correctness of this judgment unless the written agreement as to the facts is a part of the record.

A written agreement as to the facts materially differs from an agreed case provided for by our code. —Mills ’ Ann. Code, sec. 278; 1 Ency. of PL and Pr., p. 387.

We speak here merely to a written stipulation as to the facts in this case. An agreed statement as to the facts is not a part of the record unless made so by a bill of exceptions. — School Dist. v. School Dist., 64 Arkansas 483, 488.

There is no bill of exceptions herein. We must presume that the ruling of the lower court was right.

Judgment affirmed. - Affirmed.

The Chiee Justice and Mr. Justice Maxwell concurring.  