#### Jones v. Mitchell.

Opinion delivered May 20, 1907.

Appeal — presumption where evidence is not brought up. — Where a record in chancery shows that the case was determined by the chancellor upon oral as well as written testimony, the presumption, where that oral testimony is not preserved, is that the finding of the chancellor is supported by the testimony.

Appeal from Sevier Chancery Court; /. D. Shaver,' Chancellor ;

affirmed.

C. B. Davis, for appellant.

H. L. Norwood, for appellee.

Hill, C. J.

This is an appeal from a decree of the chancery court where the evidence was taken partly by depositions and partly orally before the court. There was no bill of exceptions filed, but what purports to be the oral evidence is set forth in the record. It is not authenticated by the trial judge, and can not be considered as a part of the evidence. This hearing has ibeen continued in order to give appellant an opportunity to correct the record, as he has insisted that there is a mistake in the record. The time .in which to make the correction has expired, and the court must determine the case upon the record as it stands.

Where a record in chancery shows that the case was determined by the chancellor upon oral testimony as well as written testimony, the presumption, where that oral testimony is not preserved, is that the finding of the chancellor is supported by the testimony. Carpenter v. Ellenbrook, 58 Ark. 13; White v. Smith, 63 Ark. 513; Gaines v. Waters, 64 Ark. 609.

It has -been insisted that the face of the record shows error, but this position is not. maintainable. The decree is responsive to the issues framed in the pleadings, and the relief granted is in conformity to the prayers thereof.

Judgment is affirmed.