Zimmerman v. Merchants & Bankers' Insurance

42 N.W. 318, 77 Iowa 350, 1889 Iowa Sup. LEXIS 192

• Court: Supreme Court of Iowa
• Decided: May 13, 1889
• Status: Published

Opinion

Granger, J:

Appellee moves to strike from appellant’ s abstract what purports to be the instructions of the court, on the ground that they constitute no part of the record, not having been filed in the cause nor preserved by a bill of exceptions. There is no bill of exceptions in the case, and appellant’s abstract nowhere shows that the instructions were filed, and an additional abstract by appellee states in terms that the pretended instructions set out in the abstract were never written out, signed by the judge and filed in the case. To this there is no denial by appellant, and it is to be taken as true; but, if we were to.take the contradictory statements as presenting an issue as to the true state of the record in this respect, there is nothing from which we could determine the question. When the abstracts of parties present an issue of fact as to the state of the record in a law action, we must look to the bill of exceptions to settle the question, and it is the duty of appellant to furnish that record. Under this state of facts we must regard the instructions in the abstract as no part of the record, and the motion to strike the instructions from the abstract is sustained. Mudge v. Agnew, 56 Iowa, 297.

Appellee also moves to dismiss the appeal for the saíne reason. The appeal seems to have been properly perfected, and in such a case it is not our practice to dismiss an appeal merely because of a defective record, but to affirm, or reverse, as the record of the cause will justify.

The only errors assigned in the case are as to the giving of the instructions ; and, as under the ruling they are no part of the record, the assignment cannot be considered, and the judgment is

Affirmed.