
    John Fitzgerald et al., Administrators, v. Simon P. Benadom.
    [Filed September 28, 1892.]
    1. Record for Review: Bill of Exceptions: Affidavits. Where issues of fact are tried ou affidavits, this court will not' review the order of the district court upon such evidence, unless the affidavits are identified and preserved in the form of a hill of exceptions.
    Error to the district court for Lancaster county. Tried below before Chapman, J.
    
      James E. Philpott, for plaintiffs in error.
    
      Abbott, Selleclc & Lane, contra.
    
   Post, J.

Defendant in error recovered judgment against John Sheedy in the district court of Lancaster county, for $40.87 and costs. Defendant below subsequently filed a petition in error in this court for the purpose of having said judgment reviewed. On suggestion of his death since the filing of the petition in error, the action was revived in the name of the administrators of his estate, S. M. Melick and John Fitzgerald. The action was originally commenced before a justice of the peace and brought into the district court by appeal. A motion was made in the district court to strike out the petition, for the reason that the cause of action stated therein was not the same as that tried before the justice. This motion was overruled, to which exception was taken, and is the error assigned in this court. The record does not contain any of the proceedings before the justice. The only evidence as to the issues at that time is the affidavits of counsel. The question as to what issues were submitted to the justice of the peace is, therefore, one of fact. The district court appears to have found for the plaintiff below upon that question, and evidently determined that the cause of action before the justice was substantially the same as that stated in the petition. This ruling we cannot review, since the evidence submitted to the district court upon the hearing of the motion has not •been preserved. It has been often’ held that where issues of fact are tried in the district court upon affidavits, such evidence must be preserved in the form of a bill of exceptions in order to’ enable this court to review the judgment or order complained of. This rule is so well settled that it is needless to cite the cases in point. The judgment of the district court is

Affirmed.

The other judges concur.  