Oltmanns v. Findlay

Harrison, J. The defendants in error commenced this action, against the plaintiffs in error, alleging as the cause thereof, in substance, that on or about the 15th day of August they purchased of plaintiffs in error a horse, or stallion for general breeding purposes; that the value of a horse for such use depends largely upon his being well bred or pure stock; that plaintiffs in error, to induce defendants in error to purchase the horse, falsely and fraudulently represented to “them that said horse was a thoroughly bred German coach horse, registered in the stud book of Germany, and that they would furnish and deliver to the plaintiffs (defendants in error) a certificate of such-registration from the stud books of Germany, showing the registration of such horse therein; that the registration number of said horse in said stud books of Germany was No. 51. Plaintiffs (defendants in error), relying upon such representations, did then [291] purchase said horse for the sum of $2,200, then duly paid to the defendants (plaintiffs in error) in the negotiable promissory notes of the plaintiffs, (defendants in error) delivered to defendants (plaintiffs in error).” Her,e followed a statement in detail that the horse was not in any of the particulars as represented, and also the failure of the-parties to furnish the certificate of registration as promised, and the consequent and resulting uselessness of said horse to the purchasers for the purpose for Avhich they had bought him, and a prayer for damages in the sum of $1,900. The answer of plaintiffs admitted the sale of the horse to defendants in error for the sum of $2,200, and the execution and delivery of the promissory notes of the defendants in error to plaintiffs in error in that amount; that they represented the horse to be a thoroughly bred one,.averred that no part of. the purchase price of the horse had ever been paid, and denied each and every other allegation of the petition. There was a trial to the court and a jury, resulting in a verdict for $1,100 in favor of defendants in error, from which there was afterterwards remitted $400, and for the balance judgment was rendered. One assignment of the petition in error is as follows: “The court erred in giving the 1st, 2d,, 3d, 4th, 5th, 6th, and 7th paragraphs of the instructions given by the court upon its own motion.” Under this, objections to some of the instructions enumerated are urged in the arguments contained in the brief filed for the complaining parties. Of the instructions against which this assignment is directed, the one designated as “1st” therein is a’part of a statement of the issues, or of the cause of action as outlined in [292] the petition in the case, and as such is proper and not erroneous, and this being determined, it disposes of the entire assignment, as the alleged errors in relation to giving the instructions designated are not separately assigned, but en masse, and need not be further examined or considered. Another assignment of error is as follows: “The ■court erred in giving the 1st, 2d, and 3d paragraphs of the instructions asked by the defendant in error.” Instruction numbered 2, included in this assignment, reads as follows: “The court instructs the jury that if you find from the evidence that the paper introduced in evidence as plaintiff’s Exhibit B was given by defendants to plaintiff, and represented at the time by defendants to be a certificate of registration or pedigree, when in fact it was neither, this fact is alone a circumstance tending to prove fraud.” It is contended by counsel for plaintiff in error that the trial court, by the use of the words “when in fact it was neither,” referring to Exhibit B, told the jury that the paper was not a certificate of registration or pedigree, and that this should not have been done, but the jury should have been instructed to determine from the evidence whether it was or was not :such a certificate. Let it be conceded, for the purpose of argument, that the instruction was open to .the objection urged against it; then, whether •or not the court erred in giving it must depend upon the answer to another question, viz., was there or not uncontroverted testimony introduced that such paper was not a certificate of registration, or was such fact fully proved and without conflict in the evidence adduced in relation to it? If so, the court did not err in giving the instruction. The determination of this latter query ne [293] cessitates a reference to and examination of the testimony. The document attached to the record which purports to be a bill of exceptions has never been allowed as required by law. The parties, by their counsel, stipulated that the clerk of the district court might sign and allow the bill of exceptions, but he failed to exercise the power or right thus conferred, or to perform the duty of signing and allowing it. To present for the consideration and determination of this court errors alleged to-have occurred during the trial of a case in the district court, a bill of exceptions, settled and allowed in accordance with the legal requirements, is indispensably necessary, and if not authenticated it cannot be examined or uséd in the cause-for any purpose. (Scott v. Spencer, 42 Neb., 632; Glass v. Zutavern, 43 Neb., 334.) This being true,, we cannot inspect the evidence in this case to ascertain whether the fact stated to the jury by the court in the instruction requested and given was thereby proved and undisputed or not, and cannot say but that it was entirely proper for the court to give the instruction. It will not be presumed that the trial court erred. Error must be affirmatively shown. If not, the presumption must prevail that the court acted and proceeded correctly, and that the testimony was such as fully warranted the giving the instruction as read to the jury. (Willis v. State, 27 Neb., 98; Romberg v. Hediger, 47 Neb., 201.) The assignment of error was not directed to each of the instructions, but to all, and as it was without force as to one, in accordance with the well established rule of this court, it fails and must be overruled as to all. (Wait; v. State, 43 Neb., 18.) There are other and further assignments of [294] error which are urged in the brief filed for plaintiff in error, but to arrive at a decision of the questions raised by each and all of them an inspection or investigation of the testimony given at the trial must be made, or of portions of it. We have hereinbefore determined that such evidence has not been preserved in the manner provided by law and is not before us and cannot be used herein; that errors must be affirmatively shown, and if not, it will be presumed that the proceedings of the trial court were without error in the particular of which complaint is made. It follows that the further assignments of error must be overruled and the judgment of the district court Affirmed.