together with the evidence upon which the ruling was based, must be duly authenticated and brought upon the record of this court. We think such authentication has not been made in this case. The testimony and rulings at the trial are vouched for only by a stenographer's certificate. While it is true that this certificate is transmitted to this court as one of the papers used on the motion in the court below, yet the stonographer’s version of the proceedings had at the trial has never been authenticated by being embodied ina bill or statement settled on notice, and in manner and form as the statute directs. The motion below being upon the minutes, it was proper, if the moving party saw fit to do so, to have a stenographer’s transcript of the proceedings before the court for reference; but whether or not such transcript is used upon the hearing the law contemplates that upon such motion all disputed matters of fact must be determined by the trial court upon its own recollection of what occurred at the trial. In this court, however, we cannot so determine disputed facts, and hence it is essential that all matters of fact occurring at the trial should be settled by the court below, and the law points out how this shall be done. After judgment is entered, a bill embracing exceptions may be settled, under § 5083, Comp. Laws. See, also, § § 5084, 5094. We can see no legal reason why a bill or statement was not prepared and settled in this case after the motion was denied. This not having been done, we have no proper record before us of what occurred at the trial, and hence must overrule the first assignment of error.
We do not hold, nor do we intimate the opinion; that where a motion for a new trial is based exclusively upon affidavits and upon the grounds stated in the first four subdivisions of § 5088, Comp. Laws, that a bill or statement must be made a record for use in this court. Our views in this case have reference only to cases arising under the last three subdivisions of said section. Our law and practice relating to bills of exception and statements is largely drawn from the State of California, but in that state appeals
