Hodges v. Bierlein

South Dakota Supreme Court

Hodges v. Bierlein

56 N.W. 748, 4 S.D. 219, 1893 S.D. LEXIS 69

CourtSouth Dakota Supreme Court

DecidedOctober 10, 1893

StatusPublished

Cited by13 cases

This text of 56 N.W. 748 (Hodges v. Bierlein) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hodges v. Bierlein, 56 N.W. 748, 4 S.D. 219, 1893 S.D. LEXIS 69 (S.D. 1893).

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Opinion

Kellam, J.

This was an appeal from a judgment rendered against appellant by the circuit court of Marshall county. Appellant files an abstract setting out what purports to be the evidence upon the trial, without any statement or suggestion as to how it was made a part of the record. Respondent files an amended abstract denying the correctness of appellant’s abstract, and distinctly alleging that no bill of exceptions or statement was ever settled, and that the purported evidence presented by appellant’s abstract is no part of the record. This amended abstract is not denied by appellant. Upon this record, together with an affirmative ’ and uncontradicted showing by affidavit that no bill of exceptions' or statement was ever settled, respondent moved to strike the purported evidence from the record. The motion must prevail. The practice is well settled by many adjudications in Iowa, whence our rules as to the office and effect of abstract are taken. See Lucas v. Jones, 44 Ia. 298; Hart v. Jackson, 57 Ia. 75, 10 N. W. Rep. 295; Kent v. Coquillard, 67 Ia. 500, 25 N. W. Rep, 749; Simmerman v. Insurance Co., 77 Ia. 350, 42 N. W. Rep. 318; Brooke v. Railway Co., 81 la. 504, 47 N. W. Rep. 74.

Every error assigned by appellant is based either upon the admission, exclusion, or force of the evidence, or upon the refusal of the court to allow an amendment to defendant’s answer. With evidence stricken out we have no record upon which we can examine either of these assignments. Upon the oral argument it was suggested by appellant that the motion for a new trial was made upon the minutes of the court. This would not remove the difficulty. There must be an authenticated record here, showing error, before a judgment can be reversed. No such record is brought here. Every presumption is in favor of the correctness of the judgment. The judgment of the circuit court is affirmed.

All the judges concur.

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Kellam, J.

This was an appeal from a judgment rendered against appellant by the circuit court of Marshall county. Appellant files an abstract setting out what purports to be the evidence upon the trial, without any statement or suggestion as to how it was made a part of the record. Respondent files an amended abstract denying the correctness of appellant’s abstract, and distinctly alleging that no bill of exceptions or statement was ever settled, and that the purported evidence presented by appellant’s abstract is no part of the record. This amended abstract is not denied by appellant. Upon this record, together with an affirmative ’ and uncontradicted showing by affidavit that no bill of exceptions' or statement was ever settled, respondent moved to strike the purported evidence from the record. The motion must prevail. The practice is well settled by many adjudications in Iowa, whence our rules as to the office and effect of abstract are taken. See Lucas v. Jones, 44 Ia. 298; Hart v. Jackson, 57 Ia. 75, 10 N. W. Rep. 295; Kent v. Coquillard, 67 Ia. 500, 25 N. W. Rep, 749; Simmerman v. Insurance Co., 77 Ia. 350, 42 N. W. Rep. 318; Brooke v. Railway Co., 81 la. 504, 47 N. W. Rep. 74.

Every error assigned by appellant is based either upon the admission, exclusion, or force of the evidence, or upon the refusal of the court to allow an amendment to defendant’s answer. With evidence stricken out we have no record upon which we can examine either of these assignments. Upon the oral argument it was suggested by appellant that the motion for a new trial was made upon the minutes of the court. This would not remove the difficulty. There must be an authenticated record here, showing error, before a judgment can be reversed. No such record is brought here. Every presumption is in favor of the correctness of the judgment. The judgment of the circuit court is affirmed.

All the judges concur.

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Bluebook (online)

56 N.W. 748, 4 S.D. 219, 1893 S.D. LEXIS 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hodges-v-bierlein-sd-1893.

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