The only error assigned by the appellant, upon the record of this cause, is the overruling of his motion for a new trial. The only cause for such new trial relied upon, in argument, by the appellant’s counsel for the reversal of the judgment, is alleged misconduct of the jury, in this: That two jurors, “ whose names are unknown to this defendant,” were sleeping during the trial and the argument of the cause.
This is the second statutory cause for a new trial, and must be sustained by affidavit showing its truth. Sections 559 and 562, E. S. 1881. It appears from the transcript, that the appellant did file his own affidavit, in support of this cause for a new trial. But the affidavit was not made a part of the record, either by a bill of exceptions or by an order of court. Therefore, the affidavit is not properly in the record, and can not be considered here. This is settled by many decisions of this court. Fryberger v. Perkins, 66 Ind. 19; Williams v. Potter, 72 Ind. 354; Iles v. Watson, 76 Ind. 359.
We find no error in the record.
The judgment is affirmed with costs.