competent than the oral statement of its contents. The testimony of Mr. Fisher should have been stricken out. For the foregoing errors of the district court the judgment must be reversed, and a new trial granted. It is so ordered. All concur.
WALLIN, J., having been of counsel, did not sit on the hearing of the above case; LAUDER, J., of the fourth judicial district, sitting by request.
AUGUSTA MATILDA WOOD, Executrix of the last will and
testament of CHRISTIENA NISSEN, deceased, Plaintiff and
Respondent, v. CHRISTIAN NI8SEN, Defendant and Appellant.
Record on Appeal-Bill of Exceptions-Notice of Settlement-Striking From Record.
1. After an appeal from a judgment in favor of the plaintiff a transcript of the proceedings had at the trial, embracing the evidence as extended by the stenographer, was, by order of the district court, annexed to the judgment roll, and the same was sent up to this court as a part of the record. No proposed bill of exceptions or statement of a case was ever served, and no notice was given to plaintiff's counsel, stating the time and place when and where a bill or statement would be presented to the trial court for settlement and allowance; nor did the trial court make an order purporting to be an order settling or allowing a bill or statement. No attempt was made in the transcript to specify errors of law, or to indicate wherein the evidence is insufficient to justify the findings of fact. Held, that such transcript of the proceedings, embracing the evidence, is neither a bill of exceptions nor a statement of a case, and constitutes no part of the judgment roll; nor is the same an order "involving the merits," within the meaning of Comp. Laws 1887, S$ 5103, 5237. See De Lendrecie v. Peck, 1 N. D. 422, 48 N. W. Rep. 342.
2. A preliminary motion to purge the record by eliminating therefrom the "transcript" aforesaid was granted.
3. No error appearing upon the face of the record proper, the judgment of the court below is affirmed.
(Opinion Filed June 6, 1891.)
APPEAL from district court, Cass county; Hon. WILLIAM B. MCCONNELL, Judge.
