On Motion to Dismiss.
The opinion of the Court was delivered by
Manning, J.The motion is based on the absence from the record of the inventory and other documents, and the failure of the appellant to have the transcript completed, and the fact that an unsigned *832judgment ot' May 6th, -which the mover says is the one appealed from, is not appealable.
No reference is made by page to the transcript to guide us in finding this unsigned judgment of May 6th, and we do not propose on a motion to dismiss to grope our way through the record to find it, and the more since there is a judgment of May 26th, signed and in its proper place, and that-judgment dismisses the opposition of Cheval tile appellant and continues the other opposition indefinitely.
The clerk certifies that he cannot find the inventory and other documents though diligent search has been made, but they are not needed for the purpose of this appeal. The mover seems not to apprehend the condition of the case.
No trial has been had on .the merits. The opponent was denied hearing at the outset. When she offered her first witness, the executor objected to any hearing whatever on the ground that he held the opponent’s receipt for a sum paid her in settlement of the claim which she was then renewing and pressing in her opposition, and that she could not bo heard until she tendered to the executor the sum thus received. The opponent having announced that she would not tender that or any other sum, the court sustained the objection and dismissed her opposition.
The issue to be tried by this appeal is presented in an assignment of errors and bills of exception, and is whether the opponent has a right to be heard and whether a tender was necessary, not whether her claim is just and well-founded. Sor far from the transcript not having- documents enough, it has far too many. The bulk of it is not needed for the trial of the issue now presented.
• The motion is denied.