Cour v. Cowdery

Gilfillan, C. J.

Action commenced before a justice of the peace, and, after judgment for defendant, appealed on questions of law alone to the district court, where the judgment of the justice was affirmed. In the notice of appeal from the justice the appellant requested him to return all the evidence. Upon the first return it did not appear whether all the evidence was set forth, and the appellant procured an order from the district court requiring the justice to return all the evidence, and the justice made a further return, in which he sets forth some further testimony, not according to the exact language, which he says he is unable to state, but, as we understand it, according to its substance. On these returns the parties went to a hearing in the district court without any objection, so far as the record shows.

The district court held that, because all the evidence was not returned, it could not disturb the result on the ground of insufficiency of the evidence. It would not have been justified in reversing on the evidence in the returns, it being sufficient to sustain the justice’s finding; and as the court reached a right conclusion, even though the reason may have been. wrong, its decision must stand.

The appellant appears to claim that, if the justice (being requested by appellant) fail to return all the evidence, the judgment must for that reason be reversed. That certainly cannot be so. It would be a reversal of the rule that error is not. presumed, but must be shown. For failure to return the evidence in full the remedy of either party is by application to compel the justice to return it, and if either claims that certain evidence, not returned, was in fact given, he may undoubtedly have an order requiring the justice to return spécifically whether or not that evidence was given, in substance, at any rate, though he may not he able, from not having kept minutes, to certify to the exact language.

We do not see any merit in the other assignments of error. Judgment affirmed.

Vanderburgh, J., took no part in this decision.

(Opinion published 54 N. W. Rep. 935.)