#### Louisville, Evansville and St. Louis Railroad Company v. Jennie Harlan.

Practice—Bill of Exceptions—Judgment—R miittitur—New Trial.

1. This court will not be justified in considering the finding of the trial court, where the bill of exceptions does not purport to contain all the evi„ dence.

2. This court will not consider a complaint alleging the admission of improper evidence when primarily made herein.

3. A judgment for a larger sum than is claimed may be cured by a remittitur in this court of the excess.

[Opinion filed November 1, 1889.]

Appeal from the Circuit Court of Wayne County; the Hon. C. S. Conger, Judge, presiding.

Mr. J. R. Creighton, for appellant.

Hessrs. Hanna & Hanna, for appellee.

Reeves, P. J.

The bill of exceptions incorporated in the record in this case, does not purport to contain all the evidence heard by the court below. The rule is too well established to be disregarded, thatwhere the bill of exceptions does not state that it contains all the evidence heard by the trial court, the Appellate Court will not be justified in looking into the record to determine whether the finding of the trial court was correct or not. Nimmo v. Kuykendall, 85 Ill. 476; James v. Dexter, 113 Ill. 654.

As to the first error assigned, that the court admitted improper evidence on the part of plaintiff, in looking into the record, we do not find any objection by the defendant to any of the evidence offered by the plaintiff. The' last error *545assigned, that the judgment was for §150 when plaintiff’s evidence only claimed §135, is cured by the appellee entering in this court a remittitur of §15. No proposition of law was submitted to the trial court, the case having been tried by the court without a jury; therefore no question of law is before us aside from what might have arisen on the action of the court in overruling the motion for a new trial, had the bill of exceptions been made up, so that we could have looked into the bill of exceptions to see if the plaintiff, under the law, had made out a case; but, as we have seen, from this inquiry we are precluded, by the failure of the bill of exceptions to state that it contained all the evidence heard by the trial court.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.