Chase v. Scott

33 Iowa 309

• Court: Supreme Court of Iowa
• Decided: January 27, 1871
• Status: Published

Opinions

Miller, J.

I. Three errors are assigned, the first and second of which we will consider togecher. They are: 1. The court erred in admitting improper testimony; 2. That the court erred in excluding proper testimony offered by appellant.

There is no attempt to give all the evidence; not even its substance is given in the record. There are six separate bills of exceptions, each giving a small portion of evidence and the ruling of the court admitting or excluding certain testimony, but in no instance is there enough of the evidence given to enable us to determine Whether the several rulings of the- court were erróiieouá ' or otherwise. ’ • ' ' •

Every presumption will be indulged in favor of tlie ruling of tbe court below, and a party alleging error must make it appear affirmatively in tbe record. Tbe errors complained of we will not presume to exist. The appellant must show them affirmatively, and that they have actually prejudiced his case, neither of which appear from the meagre and unsatisfactory extracts of the evidence contained in the several bills of exceptions. Fletcher v. Burroughs et ux., 10 Iowa, 557; Coldren & Co. v. Cole et al., 19 id. 565; Smith v. Melburn, 17 id. 30; Doniphan and Hughes v. Street, id. 317; Pelalmourges v. Clark, 9 id. 1; Woodward v. Horst, 10 id. 120; Dawson v. Wisner, 11 id. 6; Pierce Bros. and Flanders v. S. E. Locke & Co., id. 454, and other cases that might be cited.

II. The third error assigned is, the refusal of the court to give the instructions asked by appellant.

2._refusal of ádSmies&no¿ evidence. Some of these instructions contain correct statements of the law, and may have been applicable to the case as made by the evidence. But the appellant has.failed to show, by bill of exceptions or otherwise, that the court did. not give in his charge, or other form, correct instructions upon the law applicable to the case. The charge of the court is not given in the record, and the appellee insists that all the instructions asked by plaintiff, that were correct, were substantially given in the charge of the court. Is the appellant, by failing to include the charge of the court in his abstract, from which we would be enabled to determine whether there was or was not error in the refusal of the court to give the instructions asked by him, entitled to a reversal, because some of the instructions asked and refused are correct statements of the law and applicable? ¥e think not. This would be allowing a party to take advantage of his own wrong. It was held in The State v. Johnson, 19 Iowa, 230, that “ the judgment of the court below will not be reversed for the refusal of the court to give instructions, though unobjectionable, when the record does not contain all the instructions given to the jury.” By section 3524 of the Revision, it is the duty of the appellant to bring up a perfect transcript, so as to show affirmatively the errors complained of, if they exist; and now, under rule 20 of this court, he is required to file printed “ copies of an abstract or abridgment of the record, setting forth so much thereof as is necessary to a full understanding of all the guest-ions presented to this court for decision.” This, the appellant has failed to do, in not embodying the instructions gimen by the court as well as those refused.

Affirmed.