From an examination of the transcript of record, which has been filed in this cause, it is evident that either the judgment of dismissal was signed by the learned judge below through an oversight, or that counsel failed to properly present the cause when arguing the motion, or that the whole record, which is pertinent to this issue, has not been brought up for review.
Appellate practice: review: failure of proof. Section 2939 of the Complied Laws of 1897, provides that “every action must be prosecuted in the name of the real party 'in interest.” By stipulation of counsel it is agreed that only three of the interrogatories and answers of Wiggin, whose testimony was taken by deposition are necessary or material for the determination of this case, and these interrogatories and answers are all of the evidence which is before us, and on them we must decide this cause. The interrogatories and answers now before us are not full or satisfactory. They do not show whether the alleged assignment was made verbally or by writing, but in answer to interrogatory 11, Wiggin testifies that he transferred the claim to plaintiff in error, Prior, two or three years before Novem-her 2I> *896, because he had no money to bring suit on it; and in answer to interrogatory 12, he testifies that for such transfer he received one dollar and other considerations “for the account.” Nothing else relating to the assignment of the account appears in the transcript. The testimony of Wiggin is not denied or in any manner-attacked or controverted, and there is no evidence to show that Prior is not the real and legal holder of the claim sued on. As there is no evidence in the record to sustain the judgment of dismissal entered below, in accordance with the principle announced by us in the case of Stamm et al. v. City of Albuquerque, 62 Pac. 973, that where there is no evidence to sustain the findings of the lower court, the same might be reviewed here, this cause is reversed and remanded to the district court of Bernalillo county.
McFie, Parker, and McMillan, JJ., concur; Crum-*718packer, J., having tried this cause in the court below, did not participate in this decision.