
    [No. 4699.
    Decided June 13, 1903.]
    City of Sprague, Appellant, v. Thomas F. Meagher, Respondent.
    
    APPEAL-STATEMENT OE FACTS-LACK OF CERTIFICATION-DENIAL OF AMENDMENT.
    Where a purported statement of facts on appeal is not certified by the trial judge, and the record fails to show that it had ever been settled, or application made therefor, or notice of the time and place of settlement given to respondent, the statement will not be returned to the trial judge for certification, but will be stricken from the files.
    SAME-STRIKING STATEMENT OF FACTS-AFFIRMANCE OF JUDGMENT.
    Where the statement of facts on appeal has been stricken, and there are no assignments of error in appellant’s brief, other than those based upon the evidence and proceedings at the trial, the respondent is entitled to an affirmance of the judgment on dismissal of the appeal.
    Appeal from Superior Court, Lincoln County. — Hon. Charles H. Heal, Judge.
    Appeal dismissed.
    
      
      Samuel R. Stern, for appellant.
    
      Myers & Warren, for respondent.
   Per Curiam.

The respondent moves to strike from the files the purported statement of facts filed by the appellant in this court, for the reason that the same has never been certified by the judge who tried said cause, as required by law, nor at all, and moves for an affirmance of judgment for the reason that all the alleged errors are based upon the evidence and proceedings at the trial, as shown by the purported statement of facts. This motion must be granted.

An examination of the record shows that there is no certificate of the judge whatever to the statement of facts. After the filing of this motion by the respondent, the appellant asks the return of the statement of facts to the judge who tried the cause, for the purpose of having said judge append his signature to a prepared certificate of the statement of facts. But under the circumstances of this cause this cannot be done, as it does not appear from the record that the statement of facts was ever settled by the trial judge, or that there has been any application to settle the statement of facts, or any notice of the time or place given for such settlement to the respondent, who, the record shows, had proposed amendments to the statement of facts prepared by the appellant. Under all the circumstances of this case, there is nothing left for this court to do but to strike the statement.

The further motion for the affirmance of judgment must also be granted, as no issue is presented for determination by this court, outside of those presented by the alleged statement of facts. The appellant contends that there is a question raised, upon the pleadings, and that judgment should not have been entered against it in this case, for the reason that some of the allegations of the reply had not been denied; but, outside of the fact that the statute provides that the allegations of the reply shall be deemed denied, there is no assignment of error in appellant’s brief which raises this question.

The cause will therefore be dismissed.  