Opinion by
Hoyt, Associate Justice.The only grievances alleged by the appellant in this cause as a reason for disturbing the judgment and decree of the Court below grow out of the facts of the case, and this Court cannot pass *262upon the alleged errors of the Court below, without having before it the evidence thereon taken and used.
Upon an examination of the records, we fail to find any evidence properly certified to this Court; the only certificate to what purports to be the evidence being one made by the person appointed to take such testimony as referee in said cause; and this Court has repeatedly held that such certificate is of no value whatever in this Court, his certificate not being that of an officer authorized to certify such testimony under the laws of this Territory.
But it is claimed by the appellant that the appellee lias, by his appearance, waived any such irregularity, and that by appearing herein and arguing the questions of fact growing out of what purports to be the testimony in the cause, he will be held to have stipulated that the same was, in fact, the testimony given upon the trial of said cause.
We do not think, however, that under the circumstances of this case, the conduct of the parties would be such as to amount to such a stipulation; and even if it did, this Court would not give force to such a stipulation, as by so doing it would put it in the power of the parties to an action to have the same disposed of here, upon evidence in whole or in part different from that which was introduced in the Court below.
The evidence not being here, this Court has no jurisdiction of the cause for the purpose of disposing of any question connected with the facts thereof; and there being no other questions presented in this record, it follows that the judgment and decree of the Court below must be affirmed, and it is so ordered.
We concur: George Turner, Associate Justice.
Roger S. Greene, Chief Justice.