ON REHEARING.
Seevers, Ch. J.-A petition for a rehearing having been presented, it becomes our duty to consider the objections to the opinion heretofore filed made therein. A careful reading of the opinion will disclose that it is based on the fact there was no bill of exceptions, and that therefore there was nothing before us on the defendants’ appeal. We did not consider, much less determine, the errors assigned by the plaintiff' on liis appeal.
It is objected that the opinion ignores the fact that exceptions were taken to the refusal to give certain instructions asked by the defendants, and to the giving of certain instructions by the court, but as all these instructions are based on *662the evidence, it is impossible for us to find the action of the court in giving or refusing the instructions constitutes error, unless the evidence, or at least- a statement of what it tended to prove is before us.
It is also urged that the defendants asked the court to propound certain special interrogations to the jury, which the court refused and defendants excepted thereto. In the absence of the testimony before the court and jury, it is impossible for us to say whether there was prejudicial error in this action of the court or not. Resides this the court, on his own motion, propounded interrogations to the jury which, in the absence of any showing to the contrary, we must presume covered the whole ground.
It is claimed that all the testimony was taken down by a short-hand reporter and filed with the clerk, and it is insisted such evidence, so taken down and filed, becomes a part of the record. Unfortunately, however, it is not shown in the abstract that the evidence so taken down is contained in the abstract. The petition for a rehearing must, therefore, be
Overruled.