Dicken

This is an action by the plaintiff to recover from defendant the sum of $664.79, alleged to be a balance due on an account.

The case was tried by the court, without a jury, and the defendant given judgment.

A new trial was denied to the plaintiff, and this appeal is from the order disallowing the motion therefor.

Respondent makes a preliminary objection to the consideration of the record here, claiming that the record of the proceedings contained in the transcript is neither a statement of the case nor a bill of exceptions. The notice of motion for a new trial states that said motion “will be made upon affidavits and upon a statement of the case,” and counsel for respondent declares that, inasmuch as the document intended as a statement or a bill of exceptions is thereafter at all times referred to by counsel for the appellant and the judge in his certificate as a “ bill of exceptions, ’ ’ we must accept such characterization of the document as conclusive of its character, and treat it as a bill of exceptions and not a statement. But it is further insisted that, even if it may be said to be a statement, it must be disregarded, since it does not contain, as required by section…