
    No. 11,488.
    Kennell et al. v. Smith.
    
      Pbactice. — Supreme Court. — Where the evidence is not in the record, the Supreme Court will not review the finding of the trial court upon an issue of fact.
    
      Same. — Assignment of Error.— Waiver. —Assignments of error not discussed are considered as waived.
    From the Cass Circuit Court.
    
      M. D. Fansler, for appellants.
    
      D. B. McConnell, R. Magee and S. T. McConnell, for appellee.
   Franklin, C.

This is a drainage proceeding commenced in the circuit court by appellee under the statute of 1881.

The petition was filed, notice given and proof filed; the matter referred to the drainage commissioners and their report filed, when appellants filed a remonstrance. There was a trial by the court, a finding for appellee, and, over motions for a new trial and in arrest of judgment, the ditch was established, ordered to be constructed, and one of the commissioners was appointed to superintend the work.

The errors assigned are:

1st. Overruling the demurrer to the petition and report of the drainage commissioners.

2d. Confirming the report of commissioners and establishing the ditch.

Filed Feb. 14, 1885.

3d. Overruling motion for a new trial.

4th. Overruling motion in arrest of judgment.

The record does not show that any demurrer was filed to-the petition or report of the commissioners. No question is presented by the first specification of error.

The only objection made to the confirmation of the report and the establishment of the ditch was made by filing the remonstrance. The only question presented and discussed by appellants in their brief is under the fourth cause of remonstrance filed by appellants, which reads as follows: “-That it is not practicable to accomplish said proposed drainage without an expense exceeding the aggregate benefits.”

This cause of remonstrance presented an issue of feet to be tried by the court, without a jury, and if the finding was in-support of the remonstrance, the proceedings should have been dismissed. R. S. 1881, section 4276. Upon the trial the finding by the court was in favor of the petitioners. The evidence is not in the record, and no question is- discussed or referred to in appellants’ brief under the motion for a new trial. As to this fourth cause of remonstrance, no question is presented to this court in a way that any decision can be made upon it.

Nothing is said in appellants’ brief in relation to the motion in arrest of judgment. This assignment of error is, therefore, considered as waived. We find no error in this-record.

The judgment ought to be affirmed.

Pee Cueiam. — It is therefore ordered, upon the foregoing opinion, that the judgment of the court below be and it is in all things affirmed, with costs.  