Chapel v. Wadsworth

52 N.W. 514, 85 Iowa 742

• Court: Supreme Court of Iowa
• Decided: May 25, 1892
• Status: Published

Opinion

Given, J.

The appellee moves to strike all that part of’ the appellant’s abstract which undertakes to set out or state the evidence introduced, and to affirm the judgment, for the reason that the evidence was not preserved by bill of exceptions, and is not contained in the abstracts. The abstracts do not purport to set out the testimony or any part thereof. The only reference to it in the appellant’s abstract is as follows: “On the issue thus joined this ease was tried to a jury on the twenty-first and twenty-second days of February, 1890, on oral testimony, and the defendant introduced evidence tending to support the several allegations of his answer.” The appellant’s only complaints are of certain paragraphs of the court’s charge as erroneously placing the burden of proof upon him as to certain items in controversy. It is not infrequent that the burden of proof as shown by the pleadings, may be shifted by admissions on the trial, or the introduction of uneontroverted evidence. It follows, therefore, that we cannot pass upon the correctness of these instructions, in the absence of the evidence. The plaintiff’s motion to strike and affirm must, therefore, be sustained. Affirmed.