No. 46.

#### Sanders v. Robinson.

Opinion filed Sept. 2, 1886.

Petition for rehearing. The court finds no reason to change its conclusions upon a re-examination of this case. The original proceeding was against Charles Haward, adm’r of Henry A. Sanders, to compel him to inventory certain property alleged to belong to the estate of said Sanders ; pending which Haward died and defendant in error was appointed his administrator and by leave of court made defendant. Afterward a motion was made by defendant in error to abate or dismiss the proceeding against him,'on the ground that it abated by the death of Haward. The record shows that on the 18th of November, 1885, the case was heard by the court by consent of parties, a jury being waived. The recitals in the judgment show that the hearing was upon the evidence. The bill of exceptions does not contradict the record but simply states that the defendant in error “ did not waive his motion to dismiss, but insisted upon it both before and at the time.” There is nothing in the record to show that .the motion was disposed of by the court, and certainly it can not be said that the case was disposed of in any other way than upon a hearing. The bill of exceptions does not contain the evidence or any part of it, but states that “ the evidence showed ” certain facts and fails to show that there were no other facts proved. Without stating any of the evidence it concludes by saying “ this was all the evidence,” etc. The court below having disposed of the case upon a hearing of the evidence and neither the evidence nor all the facts found by the court appearing, it is impossible for this court to say that the judgment was erroneous, and for that reason it is affirmed.

Attorneys, for appellant, Mr. M. Millard; for appellee, Mr. F. A. McConaughy.

Opinion

Per Curiam.

Judge below, Amos Watts.