Hall v. Harris , 61 Iowa 500 ( 1883 )

Beck, J.

— I. The abstract nowhere alleges that it contains all the evidence offered and admitted in the court below. But the certificate of the judge trying the cause, which appears to have been attached to the evidence in the court below, stating that “the foregoing report contains all the evidence,” etc., is printed at the end of the abstract. There is no averment, that all the evidence found in this “report” is contained in the abstract. The defendants insist that the cause cannot be tried de novo, and that the decree of the court below must be affirmed.

in supreme court: trial ílencTnotcer" tmed. II. ¥e have time and time again held that, to authorize us to try a cause de novo, the abstract must show that it contains all the evidence offered and introduced in the court below. We have also held that the printing of the certificate of the judge, as is done this case, without more, will not show that the abstract contains all the evidence offered and admitted. Overholt v. Esmay, 54 Iowa, 748; Cassady, Adm'r, v. Spofford, 57 Id., 237; Conwell v. House et al., 57 Id., 754; Rice & Son v. Plymouth Co., 53 Id., 635. It is proper to remark that the case is brought here for trial de novo, and plaintiff claims a trial in that manner.

%___. ofamenIedCt abstract. III. Defendant filed an amended abstract, claiming therein that plaintiff’s abstract “is incorrect in many particulars.” While correcting one error in the original abstract, the defendants expressly claim that, with amendment, the case is not fully presented, and all the evidence is not found in the two .abstracts. The case is not within the rule of Starr v. City of Bulington, 45 Iowa, 87, followed in Cross v. The B. & S. W. R. R. Co., 51 Id., 683, and Wells v. The B., C. R. & N. R. Co., 56 Id., 520.

The appellee, upon filing an amended abstract to correct a specified error in the original abstract, and expressly declaring that, with the amendment, all the evidence is not presented by the two abstracts, will not, under these decisions, be held to admit .that all the evidence is presented by the abstract and amended abstract. The judgment of the district court must be

Affirmed.

SUPPLEMENTAL OPINION.

Beck, J.

— I. A petition for rehearing has been filed in this case^ which presents some objections to the foregoing ojnnion that ought to be noticed.

It is not shown in the abstract that it contains all the evidence. The certificate of the judge trying the case, printed in the abstract, is to the effect that the report of the evidence contains all the testimony introduced or offered at the trial. Counsel claim that the certificate should be understood as applying to the contents of the abstract. But this cannot be, for the district judge does not pretend to certify to the abstract, and doubtless never saw it. While the rejiort he certifies may be complete, it does not follow that an abstract prepared by counsel in the'case contains all the evidence.

II. The amended abstract does not purport to present any evidence in the case. It only attempts to correct a part of the errors. The corrections made pertain to the form of the decree in the court below. This amended abstract, under the. cases cited in the foregoing opinion, cannot be regarded as supplying omitted evidence, or as an admission that the original abstract contains all the evidence.

3.-: sut,. ínent“Sregu-" sumac?16 III. Counsel for defendants, in the argument, insist that it does not appear that we have all the evidence before us. It is stated by counsel for plaintiffs in the petition for rehearing that this argument was not seen by them until after the opinion was filed. It came to us at the usual time, and in the usual manner of submitting arguments. We cannot hold that the argument was irregularly submitted to us upon the mere statement of counsel made in the petition for rehearing.

4. -: trial on errors: certified. IY. Counsel for plaintiff insisted in their arguments that this case is triable de novo. In the petition for rehearing they urge that it is not triable do novo, for the J ° . , reason that it is not made to appear that we have au evidence before us; it must be tried upon errors assigned by them. ~Without holding that we may decide the case upon the errors assigned, it is proper to observe that, were we to do so, there is no ground for disturbing the decree of the court below.

All of the errors assigned, except one, are in effect based upon the insufficiency of this evidence to support this decree. "We of course cannot consider these objections, unless it appears that we have all the evidence before us.

5 PRACTICE • fer from pieadiag. One assignment of errors relates to the ruling of the court in sustaining a motion to strike certain paragraphs of plaintiff’s reply to defendant’s cross-bill. Eour of the i. «/ paragraphs stricken were but repetitions of allegations .on matter pleaded in the petition; two of them contain allegations of matters of evidence, instead of allegations of fact, and two of them contain prayers for relief, one repeating substantially the prayer of the petition, and the other asking that the cross-bill be dismissed.- This statement sufficiently justifies the ruling of the district court-in supporting the motion to strike. The petition for rehearing is

OvEBEULED.