McQueen v. Groff

ELLISON, J. This action was brought by plaintiff on account of defendant having willfully torn down his fence whereby his field of wheat was exposed to live stock and greatly damaged. There was a verdict for [167] plaintiff for forty dollars, which the court doubled and added thereto a penalty of five dollars as is provided by statute. Judgment was thereupon rendered for the total sum of eighty-five dollars. The appeal is taken in the long form, that is, a full transcript has been filed in this court. And on that account defendant seems to have concluded that a printed abstract is not required, for in referring to the points of objection to the proceedings at the trial, the sufficiency of the evidence, etc., he refers to the pages of the transcript where he states we may find the evidence, or other matter, going to sustain his view. This can not be allowed, as has been so often ruled by the appellate courts of the State. A collection of the cases has been made by plaintiff and will be found in his brief. It is true that the abstract contemplated by section 813, Revised Statutes 1899 (old section 2253, Revised Statutes 1889) is the abstract required where the appeal is taken in the short form and a full transcript is not sent up to the appellate court. But, there is another statute, which has been in force for many years, which authorizes the appellate courts to require printed abstracts of the record in all cases. Section 874, Revised Statutes 1899. The only abstract made is that of the record proper, but it does not include those matters of exception which are found in a bill of exceptions. Unless we put aside what defendant has printed and go into the transcript itself, we have no means of ascertaining whether the errors spoken exist. We are thus remitted to the record proper, and finding no error therein we affirm the judgment. The other judges concur.