An examination of the bill of exceptions discloses such to be the fact, that no testimony was offered upon the trial below,at least this is the situation disclosed by the record presented in this court, and it is well settled that the burden of proof in any cause is upon the party who asserts .the affirmative of the issue. Ferguson v Gilbert, 16 OS, 88; Ginn v Dolan, 81 OS, 121. Commissioners v Whitslar, 82 OS, 234; Brady vs Conservancy District, 11 O App., 40.
And, as reflecting upon this issue, attention is called to Section 11447 of the General Code. A trial to a jury was waived and the matter submitted. to the court, and, (as above stated, the record does not disclose any testimony to sustain the judgment. Therefore, extended discussion would be superfluous and unnecessary.
A number of matters were suggested in the brief of counsel for defendant in error but they do not appear in the record. Therefore, it follows that in the absence of any testimony, that the judgment of the court below must be reversed, and it is so ordered.
Pollock and Roberts, JJ concur.