W. L. Eaton, J. B. Cleland, and Tilly & Stewart, for appellant. H. F. Miller and Stone, Newman & Resser, for respondent.
Action to recover real property held in trust. Judgment for plaintiff. On appeal motion entered to strike from transcript the evidence. Motion granted. Judgment affirmed.
Messrs. H. F. Miller and Stone, Newman & Resser for the motion:
The orders entered after the appeal was perfected were with- out jurisdiction and void. Comp. Laws North Dakota, § 5233. The appeal being from the judgment must be heard on the judgment roll alone. Comp. Laws North Dakota, § 5217. The court cannot add to or take from the judgment roll. Hahn v. Kelly, 34 Cal. 391; Sharp v. Daugney, 33 Cal. 505. Neither the "transcript of the evidence," "deposition" or "exhibits" constitute a part of the judgment roll. Harper v. Miner, 27 Cal. 107; Huton v. Reed, 25 Cal. 479; Spinetti v. Brignardello, 53 Cal. 283; Ritter v. Mason, 11 Cal. 214. Such matters can only be made a part of the judgment roll by a bill of exceptions or statement of the case settled and allowed. Comp. Laws North Dakota, § 5103; Kavanagh v. Maus, 28 Cal. 262; Wetherbee v. Carroll, 33 Cal. 549. A bill of exceptions which is only a rescript of the evidence will not be considered. Caldwell v. Parks, 50 Cal. 502. If the papers mentioned in the orders should be deemed to come within the requirements of the statute defining a statement of the case, they cannot be considered on the appeal as they contain no specifications of error. Butterfield v. Railroad Co., 37 Cal. 381; Spanagle v. Dellinger, 38 Cal. 278; Thorn v. Hammond, 46 Cal. 531; Watson v. Railroad Co., 50 Cal. 523.
Messrs. W. L. Eaton, J. B. Cleland and Tilly & Stewart in opposition to the motion:
On an appeal from a judgment the supreme court will review alleged errors of law occurring at the trial and properly ap- pearing in the record, without a motion for a new trial in the court below. Sanford v. Elevator Co., 2 Dak., ante, 48 N. W.
