Decided April 20, 1926.
Appeal from Carter Circuit Court.
JAMES A. WILLIAMS and J.G.M. ROBINSON for appellant.
THEOBALD THEOBALD for appellee.
Henry Fauson brought this action in equity against James H. Williams, alleging that he was the owner and in possession of the tract of land described in the petition and that the defendant was trespassing on him from time to time in utter disregard of his rights. He prayed that Williams be enjoined from entering his premises or disturbing his possession and other proper relief. Williams by his answer denied that the plaintiff was the owner or in possession of the land described in the petition or that he had entered upon it; he alleged that he was the owner and in possession of an adjoining tract of land and that the acts complained of were done on the land within his boundary. He prayed that the plaintiff's petition be dismissed and that his title to the land in controversy be quieted. At a subsequent term of the court an order of survey was entered and at the next term an agreed order submitting the case to arbitration was entered by which it was agreed that the arbitrators should have the land surveyed and decide the issues in controversy. At the next term of the court the arbitrators filed their award in favor of Fauson. Williams filed exceptions to the award and asked that it be set aside. At the next term of the court an order was made reciting that the exceptions to the award coming on to be heard and having been fully heard with all the evidence offered by either party and the argument of counsel, and the court being fully advised it was adjudged that the exceptions be overruled and the report confirmed and judgment was rendered pursuant to the award, to all of which the defendant objected and excepted. He then filed his motion and grounds for a now trial, which were overruled, to which he excepted and prayed an appeal, which was granted.
The record does not contain the evidence heard by the court on the exceptions to the award of the arbitrators. In the absence of the evidence it must be presumed that the court ruled properly. This is the only question presented by the record, and the evidence heard by the circuit court not being before this court the judgment cannot be disturbed.