In the Matter of the Application of WILLIAM V. SCOTT for a Writ of Habeas Corpus. MAUDE SCOTT, Appellant, v. GEORGIA S. FORBES, Appellee

[Civil No. 1766. Filed March 22, 1920.] [188 Pac. 260.] In the Matter of the Application of WILLIAM V. SCOTT for a Writ of Habeas Corpus. MAUDE SCOTT, Appellant, v. GEORGIA S. FORBES, Appellee. 1. Appeal and Error — Transcript op Evidence not Filed Within Sixty Days not in the Becord. — Where the transcript of the evidence is not filed within sixty days after entry of judgment or order denying motion for a new trial, as required by Civil Code of 1913, paragraph 603, the evidence is not a part of the record, and assignments of error based wholly on the testimony cannot be considered; the record not showing any stipulation of counsel nor order of court allowing additional time. 2. Habeas Corpus — Error must Affirmatively Appear. — The court on appeal in habeas corpus, which is a law proceeding, cannot' presume error, and a judgment will be reversed only on an affirmative showing of error. APPEAL from a judgment of the Superior Court of the County of Pima. Samuel L. Pattee, Judge. Affirmed. Mr. A. A. Worsley and Mr. John N. Hill, for Appellhnt. Messrs. Wright & Darnell, for Appellee. [MAJORITY — BAKER, J.] BAKER, J. This is an appeal from a judgment of the superior court of Pima county in habeas corpus proceedings awarding the custody of William V. Scott, a minor of the age of thirteen years, to the appellee, Georgia S. Forbes. The testimony adduced at the hearing is not before us in a legal sense. Paragraph 603, Civil Code of 1913, requires that the statement of facts, or bill of exceptions, or the transcript of the testimony as taken by the official court reporter, must be filed within sixty days after the entry of the judgment or order denying a motion for a new trial, etc., or within such additional or less time as may be stipulated between the parties, or within such additional time as may be allowed by the court or judge. The judgment appealed from in the case at bar was made and entered on May 5, 1919. The transcript of the testimony as taken by the official court reporter was not filed until August 5, 1919. The record does not show any stipulation of counsel, nor order of court, allowing additional time, nor any time beyond the statutory sixty days, in which to file the transcript of the testimony. In this situation of the case, the evidence is not a part of the record, and we are without any means whatever to determine the correctness of the assignments of error, based, as they are, wholly upon the testimony. Daze et al. v. Ketchum, 18 Ariz. 31, 155 Pac. 964; Piper v. Taylor, 17 Ariz. 351, 152 Pac. 863. The qualified approval by the judge of the purported transcript of the testimony was ineffectual to impart any vitality or validity to the paper. How can we say the court erred, without the facts- or the means of knowing them? We cannot presume error. It is a law proceeding, and we adjudge-error only on an affirmative showing. We have carefully reviewed the pleadings and the judgment, but we have not been able to discover any error in the proceedings, and therefore the judgment must be affirmed; and it is so ordered. ^CUNNINGHAM, O. J., and ROSS, J., concur.