Burkhart v. Ball

Supreme Court of Iowa

Burkhart v. Ball

13 N.W. 666, 59 Iowa 629

Supreme Court of Iowa·Decided October 20, 1882·Published·Cited by 4 cases

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Beck, J.

The petition alleges that plaintiff purchased of defendant a farm, paying therefor $40 per acre; that defendant represented that the farm contained ■ 160 acres; that plaintiff, relying upon such representations, paid defendant $6,400 for the farm, and that defendant’s representations as to the quantity of the land were false and fraudulent; the farm contained 164 acres and no more, which was well known to defendant. The petition seeks to recover $224, being the value of 5 Jjg- acres, the difference in the quantity of land as represented by defendant, and the quantity the farm actually contained. The answer of defendant denied all the allegations of the petition. The plaintiff filed an'abstract purporting to contain the pleadings in the case, and a bill of exceptions showing the evidence offered and admitted at the trial, the instruction given to the jury, interrogatories submitted to the jury for special findings, and a motion for a new trial, and [630] the rulings thereon. The defendant filed, in this case, an additional abstract as provided for by rule twenty, showing that plaintiff’s abstract is untrue, and that in fact no bill of exceptions was filed preserving and certifying the evidence, and other proceedings alleged in plaintiffs abstract to be set out in a bill of exceptions, and that no such records exist in the court below or are contained in the transcript filed in this court.

The plaintiff does not deny defendant’s additional abstract. It must therefore be taken as true. Unless an additional or amended abstract be denied, we will regard it as presenting the record correctly, and will not resort to the transcript to verify its correctness. Kearney v. Ferguson, 50 Iowa, 72; Lucas v. Jones, 4 Iowa, 298.

The case as presented by the additional abstract contains nothing but the pleadings filed in the court below. The rulings assailed by the assignment of errors are not before us and cannot be reviewed. The judgment of the Circuit Court must be.

Affirmed.

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Beck, J.

The petition alleges that plaintiff purchased of defendant a farm, paying therefor $40 per acre; that defendant represented that the farm contained ■ 160 acres; that plaintiff, relying upon such representations, paid defendant $6,400 for the farm, and that defendant’s representations as to the quantity of the land were false and fraudulent; the farm contained 164 acres and no more, which was well known to defendant. The petition seeks to recover $224, being the value of 5 Jjg- acres, the difference in the quantity of land as represented by defendant, and the quantity the farm actually contained. The answer of defendant denied all the allegations of the petition. The plaintiff filed an'abstract purporting to contain the pleadings in the case, and a bill of exceptions showing the evidence offered and admitted at the trial, the instruction given to the jury, interrogatories submitted to the jury for special findings, and a motion for a new trial, and [630] the rulings thereon. The defendant filed, in this case, an additional abstract as provided for by rule twenty, showing that plaintiff’s abstract is untrue, and that in fact no bill of exceptions was filed preserving and certifying the evidence, and other proceedings alleged in plaintiffs abstract to be set out in a bill of exceptions, and that no such records exist in the court below or are contained in the transcript filed in this court.

The plaintiff does not deny defendant’s additional abstract. It must therefore be taken as true. Unless an additional or amended abstract be denied, we will regard it as presenting the record correctly, and will not resort to the transcript to verify its correctness. Kearney v. Ferguson, 50 Iowa, 72; Lucas v. Jones, 4 Iowa, 298.

The case as presented by the additional abstract contains nothing but the pleadings filed in the court below. The rulings assailed by the assignment of errors are not before us and cannot be reviewed. The judgment of the Circuit Court must be.

Affirmed.

Burkhart v. Ball, 13 N.W. 666, 59 Iowa 629 (iowa 1882).

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