Phillips v. Phillips

46 Iowa 703

• Court: Supreme Court of Iowa
• Decided: June 6, 1877
• Status: Published

Opinion

Seevers, J.

This cause was submitted to and tried by the court without a jury. There is no finding of facts or assignment of errors. There is, however, an exception to the judgment in favor of the plaintiff. The evidence is not contained in the record — all we have is the following agreed statement oi facts.

“ It is agreed by.the parties hereto, that this cause came up for hearing on the 1st day of April, at the regular March term, 1876, of the Circuit Court in and for the county of Harrison, and was tried by the court; that on the trial plaintiff introduced a transcript of the judgment on which his action is based, in due form and properly authenticated, and that the same was received and duly considered by the court below; that the evidence on the part of the defendant showed that defendant had been a resident of Harrison county, in the State of Iowa, since the year 1870, during which time he had not been Out of the State; that defendant had not been within the territorial limits of the Dominion of Canada since the year 1870; that the only notice defendant had of the suit at which the judgment sued on was obtained was a summons issued out of the Court of the County of Perth, in the Province of Ontario, Canada, and served by the sheriff of Harrison county, Iowa, on defendant, at his place of residence in said county, and that said notice was duly returned by said sheriff to the court rendering the judgment sued on.” Counsel insist as the agreed statement of tacts fails to disclose that the defendant was not represented by counsel in the Canadian Court, therefore the ruling of the Circuit Court is erroneous. This position ignores the well established rule that he who alleges error must establish it. We are bound to presume the evidence was sufficient to justify the action of the court below, unless the contrary appears. As the transcript of the Canadian judgment was introduced in evidence and is not contained in the abstract, we must presume it showed affirmatively that the defendant was not represented and made no appearance in the said court.

Affirmed.