G. A. Martin Lumber Co. v. Forsythe

Hates, J. (after stating the facts as above). For a reversal of this case, the following assignments of error were made by appellant: “(1) The verdict is contrary to the law. (2) The verdict is contrary to the evidence. (3) The verdict is contrary to both the law and the evidence. (4) The verdict is not sustained by sufficient evidence. (5) The assessment of the amount of recovery in the verdict is too small.” Only the last of these assignments of error has been discussed by appellant in his brief. All others were abandoned, and the sole question presented under plaintiff’s assignment of error for the consideration of this court is whether the verdict of the jury is supported by the evidence. This action was based on an open account in favor of plaintiff against Wm. Greathouse, deceased, extending through a period of several years. This account plaintiff endeavored to establish by oral testimony, and by introducing in evidence two ledgers in which said account had been kept. The record clearly discloses that two ledgers were identified as the ledgers in which the 'account of the deceased Greathouse with plaintiff had been kept. Said ledgers, and particularly certain pages thereof showing said account were introduced in evidence and handed to the jury for examina- *630 t-ion, and the court, upon the agreement of counsel by his instructions, permitted the jury to take said books to the jury room, and instructed them that they were permitted to examine any of the pages introduced in evidence showing the alleged account of the deceased Greathouse, but the bill of exceptions does not contain the pages of said ledgers introduced in evidence, and in no way shows the contents thereof, and therefore the only error relied upon by plaintiff for reversal of this case cannot be reviewed by this court, for the reason that, when the bill of exceptions does not embrace the entire testimony, the court will presume that the evidence omitted sujiports the verdict of the jury. Sharp v. Johnson, 22 Ark. 80; Taylor v. Spears, 8 Ark. 429; Brown v. Woolsey, 2 Ind. T. 329, 51 S. W. 965; Truskett v. Bronaugh, 4 Ind. T. 731, 76 S. W. 294. Appellee in his brief has made objection to the manner in which the appeal in this case was perfected, but since, upon appellant’s own theory of ilie case, the same should not be reversed, we do not deem it necessary to consider the propositions discussed by appellee in his brief. The judgment of the trial court .is affirmed. Williams, C. J., and Dunn and Kane, JJ., concurring; Turner, J., disqualified, not sitting.