— Respondent has moved to strike the statement of facts in this case, because not certified by the trial judge as provided by law. The statement of facts is simply authenticated by the affidavit of the stenographer who reported the case at the trial, and the motion to strike must be granted.
The assignments of error are: (1) That the court erred in overruling the demurrer to the further and affirmative defense contained in the answer; (&) that the court erred in admitting testimony in support of the affirmative defense; and (3) insufficiency of the evidence to justify the judgment. The second and third assignments cannot be considered in the absence of a statement of facts or bill of exceptions, and there is nothing in the record to show that the overruling of the demurrer was prejudicial, if erroneous. All the material allegations of the complaint were denied by the answer, and the court made no finding of facts or conclusions of law. For aught that appears of record, the court may have found that the allegations of the complaint were untrue, and error will never be presumed. Without passing upon the sufficiency of the answer, the judgment must therefore be affirmed; and it is so ordered.
Hadley, C. J., Fullerton, Crow, Mount, and Dunbar, JJ., concur.