
    [No. 5602.
    Decided September 18, 1905.]
    M. H. Whitehouse, Appellant, v. Nelson Dry Goods Company et al., Respondents.
      
    
    Appeal — Review—Teial de Novo- — Errors Based Solely on Evi- - denoe — Record—Statement of Pacts — Evidence Not Brought Up-Dismissal. An appeal from an order denying leave to sue a receiver must be dismissed where the errors assigned are based solely upon the evidence, which is not brought up by a bill of exceptions or statement of facts.
    Appeal from an order of the superior court for Spokane county, Kennan, J., entered October 26, 1904, after a hearing on the merits before the court without a jury, denying leave to cue a receiver.
    Appeal dismissed.
    
      Willis H. Merriam, for appellant.
    
      Binkley, Taylor & McLaren, for respondents.
    
      
      Resorted in 82 Pac. 161.
    
   Per Curiam.

This appeal is from an order of the lower court denying the appellant leave to sue a receiver. The question was heard upon a show cause order. The ruling was based entirely upon facts presented upon a return to the order to show cause. The record before us contains no certified statement of the facts upon which the court based its decision. Respondents move to dismiss the appeal for that reason. The motion must be granted, because the errors relied upon in appellant’s brief are based solely upon the evidence heard by the lower court. This evidence — or the facts upon which the order was made' — is not brought here by statement of facts or bill of exceptions, settled or certified by the trial court. There are some affidavits in the record, but there is no certificate of the trial judge that these affidavits were all the evidence considered at .the hearing, or that the facts therein contained are all the material facts presented.

Under the rule in Chevalier & Co. v. Wilson, 30 Wash. 227, 70 Pac. 487, the appeal must be dismissed.  