Prescott v. Riverside Park Railway Co. , 99 Iowa 580 ( 1896 )

Kinne, J.

1 I. This is an equity cause, triable de novo in this court. Appellee files an abstract, in which it denies the correctness of appellant’s abstract, denies that all of the testimony offered or introduced upon the trial in the court below was duly filed and made a part of the record, and avers that appellant’s abstract and appellee’s abstract do not contain all the evidence offered or introduced on said trial. Appellant files an amendment, averring that appellant’s abstract and appellee’s abstract, and appellant’s reply abstract do contain all the evidence offered and introduced on the trial. Appellee then filed an additional abstract and reply to appellant’s amended abstract, in which it avers that all of the abstracts and amended and additional abstracts do not contain all of the evidence. To this last denial no response was made by appellant. The amended abstract filed by the appellant contained new matter, as well as a denial of the statement in appellee’s abstract. Such being the case, it was proper, if appellee still claimed that, with the new matter set out in appellant’s amendment, the abstracts and amendment did not embrace all of the evidence, to so state in an additional abstract. This it did, and insists that all of said abstracts do not contain all of the evidence offered and introduced on the trial. The rule is well settled that, when the appellee, in an additional abstract, denies that appellant’s abstract is a correct abstract of all the evidence in the case, such statement will be deemed true, in the absence of a denial by appellant. Kunz v. Young, 97 Iowa, 597 (66 N. W. Rep. 879), and cases cited. Not having all of the evidence before us, we cannot determine the case upon its merits.

2 II. Appellant insists that, as she has assigned errors, the questions presented may be determined regardless of the condition of the record. She says: “The only question in the case is as to whether or not the Riverside Park Railway Company is a railroad or street railway, and, if a street railway, does section 2008, McClain’s Code, include street railways?” To determine whether the road is a railway proper, or a street railway, requires an examination of the evidence as to the character, manner of construction, operation and use of the road. Not having all of the evidence before us, we cannot determine questions, the proper solution of which depends upon the evidence. Appellee moves to strike the evidence and the abstract because, as it alleged, the evidence has not been properly preserved. In view of our conclusion as to the condition of the record, it is not necessary to pass upon this motion. For the reasons given, the judgment below must be. affirmed.