On Petition eor Rehearing.
Rabb, J.It is insisted by the appellees in their petition for a rehearing in this cause that their petition should be granted and the judgment of-the court below affirmed, for the reason that all the evidence given upon the trial of this cause is not before this court, and that therefore it does not affirmatively appear from the record that error was committed; that for aught this court can know, it was shown *670without conflict, by the evidence upon the trial, that the plaintiff was not entitled to recover, and that the admission of the evidence complained of on the trial of the cause was a harmless error.
5. The case is before this court upon a reserved question of law and the record is made up under the provisions of §642 Burns 1901, §630 E. S. 1881. The bill of' exceptions properly only presents to this court so much of the record as is necessary to present the question involved in the decision, and the bill itself shows that evidence was introduced tending to prove the facts averred in the plaintiff’s complaint. This being so, it affirmatively appears from the record that if the court erred in permitting the defendants to testify to matters transpiring in the lifetime of the plaintiff’s intestate, the error was harmful, and necessarily requires the reversal of the cause. Appellee’s argument in support of their petition is a repetition of their argument upon the original hearing, supported by the same citation of authorities there relied upon, and none other, for an affirmance of the judgment, and all of which were carefully weighed and considered by this court on the original hearing.
Petition for a rehearing overruled.
Eoby, P. J., Watson, Comstock and Hadley, JL, concur. Myers, C. J., absent.