
    J. H. Smith v. John Gill.
    Practice; Failure to preserve Testimony. When the record fails to show that it contains all the evidence, it is impossible for a reviewing court to determine whether the judgment is contrary to the evidence.
    
      Error from Cherokee District Court.
    
    Smith and another sued Gill and wife to recover for the value of certain lumber and other materials used in the construction of a dwelling-house built for defendants in the city of Baxter Springs, and foreclose a lien on said dwelling-house for the sum so claimed. The court below gave judgment at the February Term 1872 in favor of defendants, and plaintiffs bring the case here. The error assigned is, that the judgment is contrary to the evidence.
    
      W. M. Mathemy, for plaintiff in error.
   The opinion of the court was delivered by

Brewer, J.:

The only error alleged in this case is, that upon the evidence, the judgment should have been rendered for the plaintiffs in error. But as the bill of exceptions fails to show that it contains all the evidence offered on the trial, it is impossible for us to say that the judgment was against the weight of evidence, or rendered in favor of the wrong party. This matter is well settled in this court: Western Mass. Ins. Co. v. Duffy, 2 Kas., 347; Cooper v. Armstrong, 4 Kas., 30; McGrew v. Armstrong, 5 Kas., 284; Topeka v. Tuttle, 5 Kas., 323; Hale v. Bridge Co., 8 Kas., 466 ; Turner v. Hale, 8. Kas., 38. The judgment will be affirmed.

All the Justices concurring.  