Reed v. Larrison

42 N.W. 333, 77 Iowa 399, 1889 Iowa Sup. LEXIS 204

• Court: Supreme Court of Iowa
• Decided: May 14, 1889
• Status: Published

Opinion

Beck, J.

I. The original abstract of appellant alleges that it “ contains all the evidence introduced and received on the trial” of the case. An amended abstract, filed also by appellant, alleges that “the original abstract of record filed by appellant heretofore contains all the evidence upon which the case was tried.” Counsel for appellant admit in their printed argument that “ in preparing the abstract of record we omitted such formal parts as did not appear to us material, and that which we did not call into account.”

II. It clearly appears that we have not before us all the evidence upon which the case possibly should be tried de novo in this court. We should have an abstract of all the evidence offered in the court below. That court cannot determine for us what evidence is competent and admissible in the case when it is tried here de novo. It will not do to bring a case here for trial de novo upon the evidence offered and received in the court below, and upon which it was there tried. The evidence offered and rejected must be sent to this court, and presented in the abstract. It also appears that the abstract does not present all of the records. Portions thereof which counsel for defendant thought were not material are not set out in the abstract. This court, and not counsel, is charged with the duty of determining the materiality of the records to be considered in deciding a case. Under familiar rules prevailing in this court, applicable to the condition of the record before us, we cannot try the case anew as a chancery case ought to be tried. It cannot be tried as a law case for the reason, if no other exists, that no errors have been assigned. We are required, in view of the condition of the record, to order the decree of the court below

Affirmed.