¶1ON PETITION FOR REHEARING.
¶2Appellants file a petition for rehearing in this case, which must be denied. In connection with the petition, appellants’ counsel files an affidavit setting out in great detail the facts, circumstances, and incidents attending the matter of settling the statement of the case in the District Court, and the averments of this affidavit are to the effect that the statement was settled with the entire consent of the respondent’s counsel, and that the respondent’s counsel did not at that time object to any statement, matter, or thing contained in the statement of the case. In opposition to the affidavit of the appellants’ counsel, counsel for respondent has filed an affidavit in which he denies specifically and in detail nearly all the averments of fact set out in the appellants’ affidavit, except that it is admitted in the last mentioned affidavit that counsel for the respondent was present when the statement was settled, and that he made no objection to the settlement, and further admitted that he said to the trial court at that time that he had no amendments to offer to the statement about to be settled. The certificate of the trial court is to the effect that the statement was settled with the consent of both counsel, and that it embraces all the evidence offered and proceedings had at the trial. The affidavits of counsel pro and con as to what was said, done, and understood when the statement was settled have no place in a petition for a rehearing, and the same will be disregarded wholly by this court. The affidavits might have pertinency, perhaps, if the same were presented upon an application to resettle the statement. But no such application was ever made. The statement of the case as settled is a court record, and it must be so regarded, and the certificate to the effect that the statement embraces all the evidence is prima facie evidence that all the evidence offered at the trial will be found in the statement; but this evidence is not conclusive. If, on examination of the statement, it appears affirmatively on its face -that evi*203dence which was offered below has in fact been omitted from the statement of the case, this fact will control the court, and overcome the prima facie evidence contained in the certificate of the trial court. See Erickson v. Kelly, 9 N. D. 12, 81 N. W. 77; Loan Co. v. McLeod, 10 N. D.-, 86 N. W. 110; Vassau v. Campbell, (Minn.) 81 N. W. 829. As has been seen, in the original opinion this court found by an inspection of the statement of the case that certain papers relating to the tax proceedings in question had been offered in evidence at the trial, and that said papers had been omitted from the statement as settled. Upon this condition of the record the court was without authority to enter upon a trial de novo under § 5630, Rev. Codes 1899. Under said section a trial anew in this court of the entire case is conditioned upon two prerequisites, viz.: First, that such trial must be demanded in the statement of the case; and, second, that the statement must embrace all the evidence offered in the court below. Until these conditions are met, this court has no authority to try the case anew. In this case one condition was lacking, viz.: the evidence. The petition is therefore denied.