J. V. Farwell Co. v. Zenor ( 1895 )

Kinne, J.

I.. Plaintiffs in this action seek to recover the possession of certain goods, or their value, which goods they claim under two certain chattel mortgages executed by one Jonas Nichols. The answer is a general denial. After plaintiffs had taken possession of the goods by virtue of their mortgages, the defendant, as sheriff, took the same from them by virtue of a writ of attachment which had been issued in the suit of one Minchen against Jonas Nichols. Appellant claims that the verdict is contrary to the. evidence, in that the evidence failed to show that the goods taken by plaintiffs under the mortgages are the identical goods described therein. This question, of course, can only be determined from the evidence. This record consists of an abstract of appellant, and two amendments thereto, and an amended abstract filed by the appellees. In the second amendment filed by appellant is this statement: “The abstract now made in this case being the appellant’s abstract of record, the appellant’s former amendment, and this amendment do set out a full and fair statement of all the pleadings, evidence, and rulings of the above-entitled cause.” This is the only reference in any of appellant’s abstracts, relating to this matter. Appellees have filed an additional abstract, wherein they deny the correctness of appellant’s abstracts and amendments, and aver that all of the evidence is not before this court in the several abstracts. Appellant having made no denial of this claim, we must Accept the statement in appellees’ abstractas correct. Marsh v. Smith, 73 Iowa, 296 (31 N. W. Rep. 866); Acton v. Coffman, 74 Iowa, 17 (36 N. W. Rep. 774); Foley v. Hefferon, 70 Iowa, 572 (31 N. W. Rep. 877). Under this condition of the record, we cannot consider any question raised, the determination of which requires a consideration of the evidence. Gilbert v. Miller, 82 Iowa, 728 (47 N. W. Rep. 1016); Chapin v. Garretson, 85 Iowa, 377 (32 N. W. Rep. 104); Johnson v. Johnson, 87 Iowa, 410 (54 N. W. Rep. 250); Wicke v. Insurance Co., 90 Iowa, 4 (57 N. W. Rep. 632). We are, therefore, owing to the condition of the record, precluded from determining whether the verdict is contrary to the evidence.

II. Appellant also alleges error in the overruling of his motion to strike out certain evidence. For the reason heretofore given, we cannot pass upon this assignment. Not having all of the evidence before us, we cannot say whether or not the ruling was correct.

III. It is said that there was error in sustaining certain objections to the cross-interrogatories .propounded to certain witnesses. This alleged error cannot -be considered, for the reasons heretofore given. We may say, however, that the questions asked were not proper on cross-examination. No such matter was inquired about on the examination in chief. No fraud was pleaded. The only issue presented was the identity of the goods. This evidence seems to have been desired to show that the mortgages were voluntarily given. The pleadings presented no such issue, and for that reason alone the rulings were proper.

IY. Lastly, it is urged that the verdict is exces give. This claim cannot be considered, in the absence of the»evidence. Furthermore, there is no assignment of error raising the question. The judgment below is AFFIRMED.

Saturday, January 23, 1897. D. W. Wooden, A. U. Quint, and F. M. Powers for appellant. Car dell & Oiddings and Edmund Nichols for appellee.