87 Ark. 543 | Ark. | 1908
(after stating the facts.) There is no bill of exceptions, and the alleged error of the trial court is therefore not before us for review. Adler v. Conway County, 42 Ark. 488; Toliver v. State, 35 Ark. 395; Watson v. Watson, 53 Ark. 415; Stinson v. Shafer, 58 Ark. 110. The record proper shows that the cause was heard upon the evidence and instructions of the court. In the absence of a bill of exceptions bringing the-evidence and instructions before us for review, it is impossible for us to say that the verdict and judgment were prejudicial to appellant. • The result, for aught that appears to the contráry, should have been the same, even-if the cause had been transferred to the equity court.
But the answer of appellants presented no matters of purely equitable cognizance, as in American Soda Fountain Co. v. Futrall, 73 Ark. 464. See Daniel v. Garner, 71 Ark. 484. The issue involved on the complaint and answer was the ownership and right to possession of the cross ties. The title to the land from which the timber was cut was only incidental, and could have been shown at law, under the issue raised by the complaint and answer. The cross bill raised an entirely independent issue, one not germane to the question to be tried, namely, the right to the cross ties.
The attempted authentication of the bill of exceptions by two bystanders, under section 6226 of Kirby’s Digest, was insufficient. “A bill of exceptions signed by bystanders will not be considered on appeal where it does not appear' that it was first presented to the circuit judge and was rejected by him.” Morris v. Thomasson, 72 Ark. 264; Vaughan v. State, 57 Ark. 1; Fordyce v. Jackson, 56 Ark. 594.
As appellants have not made it appear .that there was any prejudicial error in the ruling of the. lower court, its judgment must be affirmed. So ordered. .