
    Colden & Co. v. Cole et al.
    
    
      Appeal from Johnson District Court
    
      Friday, June 16.
    ERROR MUST APPEAR AFFIRMATIVELY.
   The opinion of the court was announced by

Wright, Ch. J.

Where a cause, triable according to the first method of hearing equitable issues, was, by consent of parties in open court, referred to referees, “ both as to law and fact, with full powers to settle the issues,” and to “ make a report of their findings at the next term; ” and the said referees did afterwards find the “ultimate facts ” in favor of plaintiffs, and that, as matter of law, the relief asked should be granted, but did not return any of the evidence taken before them; and where, in the District Court, there was no effort made by defendants to have the testimony so taken certified or brought before the court, but the cause was submitted upon the motions of the parties, to set aside and confirm the report; and where, from the answer of the defendants (to a creditor’s bill), the sale sought to be set aside bears many of the ear marks of fraud, and indicating that there was fair grounds for believing the allegations of the petition to be true:

Held, that we could not say that there was such affirmative error to the prejudice of appellants as to justify our interference, and the decree below should be

Affirmed.  