
    J. G. Refs v. W. A. Gray and Laura L. Gray.
    (Filed September 5, 1905.)
    CASE MADE — Errors Arising on Evidence — Not Considered, When Where the record proper affirmatively shows that all the evidence taken on the trial is not incorporated therein, and the only attempt to cure omissions in the record is by statements in the petition in error, this court, following precedent, will decline to pass upon assignments of error arising wholly on the evidence.
    (Syllabus by the Court.)
    
      Error from the District Court of Custer Countyj before C. F. Irioin, Trial Judge.
    
    
      II. P. Bailey and Rutherford Brett, ior plaintiff in error.
    
      W. D. Caldwell, for defendant in error.
   Opinion of the court by

Pancoast, J.:

Plaintiff in error brought an action to recover judgment against defendants in error' for breach of warranty of title to real estate. At the time of commencement of the action he sought aid by attachment, upon affidavit setting forth various grounds therefor. Shortly thereafter, he died an amended position, to which defendants below demurred. The demurrer was overruled, and the defendants in error filed their answer, and moved, also, to dissolve the attachment. Plaintiff replied, and upon these pleadings, trial was had. The court found “That the allegations of plaintiff’s petition are not supported by the evidence,” dissolved the attachments and rendered judgment for defendants below for costs. Upon the dissolution of the attachment, and the finding of the court against plaintiff upon the evidence, error is predicated.

The record before us is imperfect. The death of the stenographer who took the evidence, and the inability of plaintiff in error to procure a transcript of the evidence taken on the trial, are facts suggested in the petition in error, and an attempt is made to embrace in the case made a statement or abstract of the testimony given below. Aside from a recital in the petition in error that all the evidence in the case is preserved in the abstract thereof attached to the record, there is nowhere in the record itself a statement that all the evidence is incorporated therein. In fact, the record itself affirmatively shows that so much of the testimony given on the trial as was applicable to the question of fact raised by the verified denial of the correctness of the grounds for attachment is not here. A statement in the petition in error that all the evidence is preserved in the record is not sufficient to cure the omission of a recitation to that effect in the case made proper; and, in the absence of evidence vital to a consideration of the assignment of error, it is impossible for this court to decide disputed questions arising thereon, and following precedent we must decline to do so. The judgment of the trial court is therefore affirmed.

Irwin, J., who presided in the court below not sitting; all the other Justices concurring.  