Hendericks v. City of Council Bluffs

62 N.W. 675, 94 Iowa 192

Opinion

Given, C. J.

The case is submitted upon appellant’s abstract, filed October 18, 1893, and an amendment thereto, filed February 6, 1894, and appellee’s abstract, filed February 13, 1894. Appellee’s abstract contains the following denial: “Appellee denies the correctness of appellant’s abstract' of the evidence, and alleges that the same is unfair and incorrect; that the following is a correct abstract of the testimony, so far as it purports' to be an abstract of the testimony of the witnesses referred to, but does not, with appellant’s abstract, contain all the evidence offered and introduced in the trial of the case.” The errors assigned are as follows. “First. The verdict of the jury in the court below was not sustained by the evidence. Second. The verdict of the jury was not in accordance with the instructions of the court. Third. The court below erred in refusing to set aside the verdict and grant a new trial. Fourth. The court below erred in giving of instructions numbers 5, 6, 7, 8,11, 12, and 13,. and each of them.” It will be observed that appellee’s denial stands unquestioned, and, taking it as true, we must hold that we have not all the evidence before us. It is evident from the record and the arguments that the errors assigned and discussed cannot' be considered in the absence of the testimony. See Shattuck v. Insurance Co., 78 Iowa, 377. With this condition of the record, the judgment of the district court must be affirmed.