Peoria Steam Marble Works v. Linesenmeyer

45 N.W. 766, 80 Iowa 253, 1890 Iowa Sup. LEXIS 208

Opinion

Beck, J.

— I. The maker of the notes, against whom judgment was rendered, urges no objection thereto. His wife, who claims property in the notes sought to be subjected to the judgment, alone objects to the decision of the court below, on the ground that there was no proof of fraud, nor of the insolvency of the debtor, and that the evidence on other points is insufficient. The case is not in a condition for decision by this court. The abstract fails to show that we have ¿11 the evidence before us. It contains this language, and nothing more, referring to this matter: “Certificate of judge and reporter that it was all the evidence introduced or offered on tbe trial.” We presume it is intended to say tbat tbe judge and reporter certified that tbe evidence in tbe record was all the evidence introduced or offered on tbe trial; but it is not said, nor can we infer, that all tbe evidence in tbe record is set out in the abstract. We have repeatedly held tbat statements of tbe character above quoted are not sufficient to authorize us to regard the abstract as presenting all tbe evidence, and to decide.tbe case accordingly.

II. Counsel for plaintiff briefly stated this objection in their printed argument, but erased it in tbe copy filed in this case. By this we understand tbat counsel waive tbe objection. But we cannot, even with counsel’s consent, try cases de novo unless we have all tbe evidence before us. We have no jurisdiction, in cases of this character, except to try them de novo upon all tbe evidence submitted to tbe courts below. If counsel for plaintiff bad filed in this case a stipulation stating that tbe abstract does contain all tbe evidence introduced or offered in evidence ,in tbe court below, tbe case would have been different, and we would have disposed of it on tbe merits. Tbe judgment of tbe district court is Affibmf/d.