Young v. Omaha & St. Louis Railway Co.

61 N.W. 209, 92 Iowa 583

• Court: Supreme Court of Iowa
• Decided: December 14, 1894
• Status: Published

Opinion

Granger, C. J.

On the trial the defendant offered in evidence a deed of the right of way, which the court excluded under objections that it was immaterial, and not the original deed. The ruling is urged as error. The record presents an assignment of error on the action of the court in sustaining the demurrer; but the assignment is not argued, and it must be treated as waived or abandoned. Duncombe v. Powers, 75 Iowa, 185, 39 N. W. Rep. 261; Hull v. School District, 82 Iowa, 686, 46 N. W. Rep. 1053, and 48 N. W. Rep. 82. A ground of objection to the deed offered and excluded is that it was not the original deed. If not the original deed, it was certainly not admissible without a foundation for secondary evidence, and none was laid, or attempted to be. After the ruling on the objection, the record shows that counsel for appellant stated that the paper offered was a deed, a copy of which was attached to the petition; but there is no identification whatever, and our presumptions must be in favor of the action of the court. Prom the record we have no means whatever of knowing the kind of a paper offered, except the statements of counsel, and they differ as to the identity of the instrument. It does not appear that the court was in error. It may further be said, without elaboration, that the offered testimony was immaterial after the ruling of the court on the demurrer to the answer. The judgment is affirmed.