#### John A. Sterling v. M. M. Fox and Mary Fox.

1. Appellate Court Practice—Where the Record is Imperfect.— In this case the court finds no declaration or pleas in the record, nor any mention of them in the abstract, and hence has no means of knowing what issues were tried. Whether the action of the trial court complained of was material error or not, is held to depend largely upon the state of the pleadings, and the judgment is affirmed.

Replevin.—Appeal from the County Court of Madison County; the Hon. Wm. P. Early, Judge, presiding.

Heard in this court at the February term, 1897.

Affirmed.

Opinion filed September 10, 1897.

Travous & Warnock and J. W. Bartholomew, attorneys for appellant.

Eróme & Terry and W. P. Bradshaw, attorneys for appellees.

*71Mr. Presiding Justioe Creighton

delivered the opinion of the Court.

This appears to have been an action of replevin brought in the County Court of Madison County by appellant against appellees, to recover possession of certain personal property. A trial was had by jury, resulting in a verdict finding the title to the property in question to be in the defendants. Motion by appellant for new trial overruled. Judgment on the verdict. Cause appealed to this court.

Of the numerous errors assigned only three are urged: The giving by the trial court of appellee’s first instruction, refusing of appellant’s fifth instruction, and the refusal by the court to admit certain testimony offered on the trial by appellant.

We find no declaration or pleas in the record, nor any mention of such in the abstract, and therefore have no means of knowing what issues were tried. Whether the action of the court complained of was material error or not depends much upon the state of the pleadings.

We have, however, examined the evidence with care, and are of opinion that substantial justice has been done, and that upon the merits of the case the judgment of the County Court should be affirmed.