This case is here on a writ of error, issued at the instance of plaintiffs.
No motion for new trial was made in the circuit court; upon which it might have reviewed and corrected the rulings at the trial. They- are not, therefore, the subject of consideration here, under our statute declaring that “no exception shall be taken, in an appeal or writ of error, to any proceedings in the circuit court except such as have been expressly decided by such court.” (R. S. 1879, sec. 3774.)
But several assignments of error refer to the record •proper which has, hence, been examined.
It is claimed that there is no sufficient showing of the authority or jurisdiction of the special judge who tried the cause.
The writ of' error, on which this hearing is based, was directed to the circuit court of Caldwell county. A *73record in the cause has been returned, in response, by the clerk of that court.
The bill of exceptions, filed during the February term, 1886 (at which the final judgment was rendered), is part of that record. It is signed by John E. Wait, as special judge, and recites that the cause was tried before him in that capacity.
How he came to be special judge, or whether he ever was sworn, generally, or in that case, does not affirmatively appear. His actions as special judge are part of the records of that court, however, and, in the absence of any showing to the contrary, will be presumed to ha*ve been correctly taken.
The same presumptions of jurisdiction attach to the record of proceedings in circuit courts before special judges, as before the regular judge.
The present case is an action for partition, one of a class which the circuit court has power, by our laws, to entertain and adjudicate.
If the court, erroneously, permits its functions to be exercised, in any particular instance, by one not properly qualified to do so-, that fact should be made to appear by the party relying on it. Where such a showing is wanting we will presume that the official record of the circuit court has been made by one entitled to make it.
II. It is next urged that, in such an action, the trial court could not properly take jurisdiction of the defense presented by the special answer seeking to charge the so-called “advancements” upon the interests of plaintiffs, and some of the other parties to the cause.
A partition proceeding is but an ordinary action in this state. In it the circuit court may lawfully consider any defense, whether legal or equitable in its nature, that could properly be interposed in civil action under our code of pleading. (R. S. 1879, sec. 3521.)
*74In this instance, the answer sought to charge the interests of some of the parties to the cause, in the land in suit, with certain payments, in the nature of advancements, made to them by their ancestor’s executrix under an express agreement that they should be so charged. Such a defense the circuit court had the power to hear and determine. It exercised the power, and accordingly adjudicated the interests of the parties within the limits . of the case made by the pleadings.
Whether the evidence at the trial warranted the conclusion reached we do not consider, in the absence of a motion for new trial in the circuit court. It is enough, in the present aspect of the case, to know that the trial court had jurisdiction to render the judgment between the parties before it.
We find the record free of any error materially affecting the merits of the case to the prejudice of the plaintiffs in error.
The assignments of error already noted are the only ones having any bearing on their interests, or requiring comment.
These views being shared by all my brother judges (except Ray, 0. J., absent), the judgment is affirmed.