Flesher v. Groves

48 Iowa 700

• Court: Supreme Court of Iowa
• Decided: April 19, 1875
• Status: Published

Opinion

Seevers, J.

No motion was made in the court below for a trial on written evidence, and the trial was upon oral testimony taken before the court at the hearing. The evidence has not been certified by the trial judge and made a part of the record. The appellee objects that there cannot be a trial de now in this court. This objection cannot be ignored, but must be sustained. Code, $ 2742. Vinsant v. Vinsant, 47 Iowa, 594, and numerous other cases. The only exception taken appears at the conclusion of the decree, and is as follows: “To this ruling and decree the defendant, Groves, excepts.”

The abstract states: “The following testimony, as shown by the reporter’s minutes certified and filed, was offered.” Then follows what purports to be the evidence. This is followed by the decree, and then appears this statement: “The minutes of the reporter filed and certified in this ca'se contain all the evidence offered by either party.” The foregoing is all that appears in the abstract in relation to whether all the evidence introduced below is now before this court. This would probably be sufficient if the statute made the reporter’s minutes evidence of such fact. This it does not do.

There are but three modes known to the law by which this court can know that all the testimony introduced on the trial below is before us. They are — First, by bill of exceptions, stating such fact; second, the certificate of the judge (Code, § 2742); and, third, the certificate of the judge, ag'reement of the parties or their attorneys, or certificate of the clerk. Code, { 3170.

The only errors assigned challenge the sufficiency of the evidence to sustain the decree. But as there is no proper and sufficient showing that all the testimony is before this court we cannot determine the questions presented.

Affirmed.