Walrod v. Flanigan , 75 Iowa 365 ( 1888 )

Reed, J.

— The sole ground on which we are asked to reverse the judgment is that it is contrary to the evidence. No other question is raised by the assignment of errors, or argued by counsel. There are two sufficient reasons why we cannot disturb the judgment on that ground.

1. Boundaries establishing lost corner: evidence on appeal. I. The cause is not triable de novo in this court, but is to be determined on the errors assigned. The judgment implies a finding by the court . , , , . . that the corner was established, m the origina* surve7 °f the land, at the point designated by the judgment. That 'finding is in conflict with the field-notes of the original survey. But a number of witnesses, who were examined before the commissioners, testified that they had often seen the mound and pit by which the corner was marked, before they were obliterated, and that they were not at the point designated in the field-notes ; and some of them testified that they were at the point designated in the judgment. The testimony of other witnesses as to that point, however, corresponded with the field-notes. The rule in such cases is well settled that courses and distances must yield to fixed monuments ; and the question as to the point of location of the monuments was one of fact, and on that question there was a substantial conflict in the evidence. The rule that we will not in such case disturb the finding of the trial courts or jury has been so long adhered to that we ought not now to be asked to review it, and there can be no occasion for the citation of cases in support of it.

2. Appeal: practice: statement of abstract as to evidence. II. The other reason is that the abstract on which the case was submitted contains no statement that the evidence set out therein is all the evidence on which the case was heard below. In this respect the abstract is like that in Love v. Donaldson, 63 Iowa, 631, and the proceeding of the same character. It is true, the abstract contains a certificate of the judge to the effect that the bill of exceptions contains all of the evidence in the case. But there is no allegation in the abstract that it contains all of the evidence set out in the bill of exceptions. We have uniformly held that this is not sufficient. Porter v. Stone, 62 Iowa, 442; Wisconsin, I. & N. Ry. Co. v. Secor, 70 Iowa, 647; Fulliam v. Ctiy of Muscatine, 70 Iowa, 436 ; Woodrum v. Carraher, 69 Iowa, 145.

Affirmed.