¶1delivered the opinion of the court.
¶2Appellants, complainants in the court below, recovered judgment in this case. The court imposed costs on the defendants, but refused to allow the complainants counsel fees. The proceeding was an injunction to recover the material possession of a piece of real estate. The defendants alleged title in themselves. The court held that a matter of title could not be examined into in this class of proceeding. Appellant urges several errors. They all necessarily go to the question of whether the defendants defended the case when they ought to have surrendered the possession"1 and whether such a defense as presented showed ‘temerity/ as the'Spanish phrase runs. The appellants maintain that as the defendants subjected them to fairly long and tedious proceedings to recover the possession, they ought to be mulcted in fees. The court gave no reasons for failing to impose fees. The award was a matter in the sound discretion of the court and on appeal the failure to award must be shown to be an injustice. There is nothing in the opinion that shows this, and the evidence has not been certified to us. The court had the parties before it and could judge as to whether they had defended with more or less of an honest belief that they were within their rights. We could only possibly review the action of the court if we had the evidence before us. Not having it, the presumption that the court’s finding was correct must prevail and the judgment must be
¶3Affirmed.