Mills

The questions attempted to be presented in this case depend upon a statement of the case which appears in the record. It is contended by the respondent that the statement should be stricken out, and must be disregarded by this court, because it was not filed in the court below at the time the motion for a new trial was submitted and denied.

The motion for a new trial was submitted December 10, 1887. There is no indorsement of filing on the statement as it is copied into the record, nor is there any evidence of any kind that it was then on file, or that it was before the court, or made the basis of the motion. The certificate of the clerk at the close of the transcript, after certifying to copies of papers constituting the judgment roll, recites: “And I further certify that the .foregoing printed transcript beginning at folio one (1), and ending at folio three hundred and seventy-three (373), excepting, however, and excluding the map attached to page 35 of said transcript, is a correct copy of a document filed in said court on the tenth day of February, 1888. And I further certify that the map attached to page 35 of said transcript is a true copy of said map *53 received by me and…