O. D. Hendershott was counsel for the plaintiff in the court below, and had the principal management of the case. The defendants claim that, after the case was disposed of in the district court, they handed over to Hendershott certain subscriptions to the club, in compromise and settlement of the claim of the plaintiff, and that Hender-shott accepted the same for the plaintiff and as a compromise, and collected part of the subscriptions for the plaintiff; that the plaintiff accepted and. ratified this settlement, and is bound thereby. On the other hand, the plaintiff protests that he had no notice of any such, an arrangement; that Hendershott had no authority to mate such a settlement, and that he received no part of the subscriptions from Hendershott. A large number of affidavits have been filed by the parties, and every fact and proposition submitted in the motion is supported and contradicted by the affidavits. It is true, all parties concede that the subscriptions were turned over to Hen-dershott. The defendants claim that they were delivered to him for the plaintiff as a compromise of his claim. Hender-shott claims that he received them for collection as the attorney of the defendants. There is no writing signed by any of the parties in regard to the matter in controversy. In this state of the record, we cannot dismiss the appeal. In order to justify the determination of an important right upon mere affidavits, the matter in controversey should not be left in doubt. It should clearly appear that appellant has no further
Motion Overruled.