Tune v. Sweeney , 34 Minn. 295 ( 1885 )

Vanderburgh, J.

This action was brought in justice’s court against two defendants, only one of whom was served with process. The complaint was oral, upon a promissory note, the substance of which was entered in the docket; but whether the promise was joint only, or several as well, did not appear. The defendant who was served appeared on the trial. The note was received in evidence without objection, and judgment was rendered.against the defendant who appeared for the amount claimed and interest. The appeal was upon questions of law only, and the evidence was not returned.

1. In the absence of the evidence including the note or a copy, we are not able to say that the defendants’ liability thereon was not several, or that there was not sufficient evidence to support the judgment as rendered. We must presume that there was.

2. The note does not appear among the files, but it was produced and accounted for at the trial, showing that it was in possession of the payee, and the defendant did not ask that it should be made part ■ of the record, which the court doubtless would have required if necessary for his convenience or protection. The omission is no ground for a reversal of the judgment.

Judgment affirmed.