
    JOSEPH E. BENTLEY et al., Appellants, v. REBECCA F. JONES et al., Respondents.
    Appeal—Execution—May be Recalled, When.—When an appeal has been taken from a judgment and undertaking given for a stay of proceedings, an execution issued thereon may be recalled and set aside by the circuit court on motion.
    Idem—Evidence not Produced in Lower Court.—No paper or other evidence not produced at the hearing of the motion in the circuit court can be considered by the appellate court.
    Appeal from Linn County. The facts are stated in the opinion.
    
      
      S. A. Johns and T. P. Hacldeman, for appellants.
    
      J. K. Weatherford and N. B. Humphreys, for respondents.
   By the Court,

Prim, J.:

This is a motion by respondents before Judge Harding, at chambers, to set aside an execution issued on a judgment in favor of appellants and against respondents for one dollar damages, and for two hundred and thirteen dollars and eighty cents, costs and disbursements, for the reason that an appeal had been taken to the supreme court by respondents, wdiereby proceedings were stayed as provided by law. The motion was heard in term time, and allowed, and an order made setting aside the execution, and for costs and disbursements. From this order and judgment an appeal has been taken to this court.

On looking into the transcript it will be seen that the motion was based upon the affidavit of John C. Elder, one of the respondents. The order setting aside the' execution, it appears was based upon that affidavit, as the record fails to show that any other paper was produced by either side. Appellants having failed, on the hearing of the motion, to controvert the facts stated in the motion and affidavit upon which it was based, they were and should have been treated as true. The material provisions of the undertaking on appeal as set out in said affidavit, were sufficient, if true, to sustain the motion. If not properly set out therein, they should have been controverted by the other side, by counter affidavits or by producing a certified copy of the original undertaking on file. Respondents having failed to avail themselves of this privilege at the hearing of the motion, the court very properly held that the execution had been improperly issued and should be recalled.

But it appears that the original undertaking filed on the appeal has been sent up with the transcript to this court, and upon inspection it will be seen that its provisions were insufficient to operate as a stay of execution. It is claimed, however, that this paper is improperly here and should not be considered by this court. This position we are of opinion is correct. This paper properly belongs to the files in the original case, and has no connection whatever with the transcript in this proceeding unless produced in evidence at the hearing, and if produced in evidence, a certified copy should have been used instead of the original. But there being no bill of exceptions nor anything in the record indicating that it was used in the court below, it can not be used here.

The judgment of the court below is affirmed with costs.  