Rice v. Plymouth County , 53 Iowa 635 ( 1880 )

Seevers, J.

i. practice preme court: ¡deuce. ‘ This cause was before us at a former term, and is reported in 13 Iowa, 136. Tbe errors assigned on tbe present appeal are, that the court erred in admitting and excluding evidence; that tbe court erred in refusing certain instructions aslced, and that tbe verdict is contrary to the instructions given. None of these errors are argued by counsel for tbe appellant. They will, therefore, be deemed waived. Such is tbe settled rule. A citation of adjudicated cases in its support may well be omitted.

• Tbe only error to wbicb our attention has been called by counsel is that tbe verdict is against, and not supported by, tbe evidence, and counsel for the appellees insist that tbe abstract does not purport to contain all tbe evidence, and, therefore, we cannot correct tbe supposed error of tbe court below in refusing to set aside tbe verdict and granting a new trial.

Tbe abstract states as follows: “At tbe March term, 1879, of said court, the said cause was tried by a jury, and upon such trial tbe following proceedings were bad, and evidence introduced, and exceptions taken, as shown by tbe bill of exceptions made, signed and filed as a part of tbe record of said cause. The plaintiffs, to srrstain tbe issues on their part, offered tbe following evidence.”

Following this statement is certain evidence, instructions asked and refused, and such as were given. Immediately following the latter is this statement, wbicb is the closing portion of tbe bill of exceptions:

“And this being all of the evidence as given and received, and tbe objections and exceptions of tbe defendant to tbe admission or exclusion of said evidence; all of tbe charges given by tbe court to tbe said jury, and tbe exceptions of tbe defendant to tbe giving of tbe same; and the instructions asked by the defendant to be given by the said court to the jury, and refusal of the court to so charge, and the exceptions of the defendant to such refusal. The defendant asks the court to sign this, its bill of exceptions, and-make the same a part of the record, which is done accordingly, this 26th day of March, 1879. G. IT. Lewis, Judge D. OP

It is quite apparent the bill of exceptions contains all the 'evidence. As we infer a transcript has been filed, and it will be there found without much doubt. But as the- correctness of the abstract is not disputed, we do not, under the settled practice, look into the transcript. The point made, by the appellees is the insufficiency of the abstract, conceding its correctness.

Ve are forced to the conclusion that the abstract only purports to set out what is said to be in the bill of exceptions, and it does not state that all the evidence contained in the bill of exceptions is set out in the abstract.' Before this court can set aside a verdict, it must clearly appear all the evidence introduced on the trial below is in the abstract. This prac7ce is so well settled that it is unnecessary to cite cases in its support.

Aeeirmed.