Walter v. Cathcart

18 Mo. 256

Opinion

Scott, Judge,

delivered the opinion of the court.

This was a proceeding in forcible entry and detainer, taken to the Circuit Court by certiorari. None of the evidence given on the part of the plaintiff, Walter, is preserved in the record. The only piece of evidence offered by the defendant was an assignment of some leasehold premises to him by Gr. A. Phegley, showing a title to the tenements about which the suit was brought. This was excluded, to which an exception was taken. The record presents nothing else but the instructions given and refused. The judgment of the law is, that the proceedings below are correct, unless it be shown that they are erroneous. The evidence not being preserved, we cannot say whether the paper offered was properly excluded or not; the presumption, then, being in favor of the judgment, it must stand.

2. The propriety of the instructions cannot be examined, as the evidence is not saved on which they were based. The instructions may have been erroneous, abstractly considered, yet, if they did not affect the verdict, a judgment will not, for that cause, be reversed.

3. The judgment must be affirmed, but in doing this, we do not wish to be understood as sanctioning the measure of dama•ges which was laid down as law when this cause was formerly here. (14 Mo. Rep.)

The other judges concur.