#### BROWN, Respondent, *v.*BOARD OF COMMISSIONERS OF DAWSON COUNTY, Appellant.

[Submitted January 21, 1895.

Decided January 28, 1895.]

*Appeal*— Motion *for new trial*— Dismissal. —Under section 297 of the Code of Civil Procedure a motion for a new trial is made upon the minutes of the court or a bill of exceptions or a statement of the case, and where the record affirmatively discloses that no such papers were before the court on the hearing of the motion, an appeal from an order denying it will be dismissed.

*Appeal from the Seventh Judicial*District, *Dawson County.*

Action against board of commissioners of Dawson county. Judgment was rendered for the plaintiff below by Mil-burn, J.

Affirmed.

*T. C.*Holmes, and *Ella L.*Knowles, for Appellant.

*StreveU & Porter,*for Respondent.

De Witt, J.

— The defendants appeal.from the judgment, which is rendered in favor of plaintiff, and also from the order denying defendants’ motion for new trial. A motion is made in this court to dismiss the appeal on the ground that there was no statement on motion for new trial, and that it is impossible to determine from the record what was before the district court upon the motion. This motion to dismiss, as far as the appeal from the order denying a new trial is concerned, must be sustained. We cannot ascertain that the court had any thing whatever before it in hearing the motion for new trial. There is in the record a document called *“*Statement of Errors and Grounds of Appeal.” This paper contains some evidence, whether the whole or only a part does not appear. But the document could not have been used upon the hearing of the motion in the district court, because it did not come into existence, as appears by the certificate of the judge, until three months after the motion for new trial had been decided, and one month after the appeal had been taken to this court.

What appears in the record as a statement on motion for new trial was also not settled until three months after the *245motion was decided, and one month after the appeal was taken to this court, as appears by the stipulations in the record extending time for preparation of the statement, and, indeed, as is conceded by the appellants’ brief. The motion for new trial was solely upon the ground of errors of law occurring on the trial and excepted to by the defendants. (Code Civ. Proc.,

§ 296.) Such a motion is made upon the minutes of the court, or a bill of exceptions, or a statement of the case. (Code Civ. Proc., § 297.) But the record in this case affirmatively discloses that no such papers were before the district court on the hearing of the motion. In fact it does not at all appear by the record that the motion was heard upon any thing whatever. (Code Civ. Proc., § 438.) The appeal from the order denying the motion for new trial is therefore dismissed.

As to the appeal from the judgment there is no error apparent upon an inspection of the judgment-roll.

Not only is the record in this case fatally defective in matter and substance, but in its arrangement and preparation it offends several of the rules of this court upon that subject.

The judgment of the district court is affirmed.

*Affirmed.*

Pemberton, C. J., and Hunt, J., concur.