Ort v. Patrick ( 1877 )

The opinion of the court was delivered by

Brewer, J.:

Defendant in error recovered a judgment in the district court of Harvey county, for one dollar and fifty cents, to reverse which this proceeding in error has been brought. "We think that for several reasons it must be affirmed. One only will be noticed. While the testimony is preserved in the record, the pleadings are not. They are neither copied in full, nor referred to, nor their substance given, nor any statement of the issues raised by them, or the admissions made in them. While the case was tried by a jury, no instructions were preserved, so that we can only infer the nature of the issues from the character and drift of the evidence. The complaint of counsel is, that the verdict was against the evidence, in this, that it showed that the cellar wall (for the building of which the action was in part brought,) was not completed according to contract. Now the pleadings may have admitted that the contract was fully completed; or, that the wall was accepted as completed, notwithstanding the defect; or, that the principal payments made were to be applied on the cellar wall, leaving the other matters about which there was no dispute unpaid for, in whole or in part. And the instructions may have properly directed the attention of the jury to these very matters of admission, and so avoided all inquiry upon the question presented by counsel. How then can we say that there was error in the proceedings ? Indeed, it may be laid down as a general proposition, that where the ground of complaint is, that the verdict is against the evidence, the record must disclose not only what the evidence is, but also what the issues are; for no evidence is material which does not bear upon the issues, and none is to be regarded which contradicts the admitted facts.

The judgment will be affirmed.

All the Justices concurring.