#### William R. Moore Dry Goods Company v. Thomas.

Opinion delivered January 7, 1907.

Appeal — bringing evidence into record. — Depositions which were read in an action at law, but were not made part of the record by bill of exceptions or order of the court, will not be considered on appeal, though the judgment recites that the evidence was in writing and on file in the case.

Appeal from Hempstead Circuit Court; W. S. Bakin, Special Judge;

affirmed.

McRae & Tompkins, for appellant.

W. M. Greene, for appellee.

BatTeE, J.

William R. Moore Dry Goods Company brought this action against J. H. Thomas on a promissory note executed by the defendant and D. G. Hart to the plaintiff, on the first day of October, 1897, for the sum of $245, and six per cent, per annum interest thereon from date until paid, and due on the first' day of October, 1898. The defendant answered, and pleaded payment and the statute of limitation. The issues in the action were tried by the court sitting as a jury. The evidence heard was in depositions. The court rendered judgment in favor of the defendant. It is stated in the judgment that the evidence was in writing and on file herein. The judgment overruling the motion for a new trial closes by saying, “And' as the proceedings in this case are in writing and on file, the plaintiff takes no bill of exceptions, but prays an appeal to the Supreme Court, which is granted.” No bill of exceptions was filed.

The depositions upon which the issues were tried were not made a part of the record by bill of exceptions or order of the court. The reference to them in the judgment was not suffi*333cient to make them so. School District No. 14 v. School District No. 4, 64 Ark. 488; Lawson v. Hayden, 13 Ark. 316; Boyd v. Carroll, 30 Ark. 527; Smith v. Hollis, 46 Ark. 17, 21; Ashley v. Stoddard, 26 Ark. 653; Scott v. State, 26 Ark. 521; Dillard v. Parker, 25 Ark. 503; Lenox v. Pike, 2 Ark. 14; Hall v. Bonville, 36 Ark. 491.

As no error appears in the record, the judgment is affirmed.