Shephard v. Brenton

Wright, J. i. instrucrelevancy, I. Appellant objects, that the court refused certain instructions aslced by him. It is possible that they should have been given under a certain state of the proof. ' What this was, however, we [43] have no means of knowing, as no part of the testimony is contained in the record. We need not cite authorities to show that, under such circumstances, we will not assume that the instructions were improperly refused. The refusal may have been j ustified, because the law as prayed was inapplicable to the proof. Farr v. Fuller, 8 Iowa, 347; Harman v. Hall, 7 Id., 153; Dilley v. Nusum, 17 Id., 238. 2. PltACexceptions, II. Defendant'is equally importunate, upon well settled rules, in his objections to the charge of the court, and to plaintiff. the instructions given at the instance of the He excepted to the entire charge, and to all the instructions. There is no claim that they are all erroneous. We have too often held that this method of excepting is-not warranted by the statute to again enter upon its discussion. Lyons v. Thompson, 16 Iowa, 62, and cases there cited. 3. -argument. III. The act of the court in refusing to hear read “ in argument for the purposes of comment,” the opinion of this court formerly delivered in this case, may have been entirely-justified. We know nothing of the circumstances, and hence cannot say that the opinion had anything to do with the case as made on the second trial. In a matter resting so peculiarly in the discretion of the court below, counsel should show affirmatively an abuse of such discretion. 4. ■ bin of imp® ch?n¿ witness. IV. Defendant asked a witness if he did not, “ on the former trial of this case, state certain facts,” and receiving answers which he "claimed were wholly or par-tidily disproved by the evidence embodied in the kill of exceptions taken on such trial,” offered the evidence, as thus preserved, to impeach said witness; the evidence was objected to, and the objection sustained. The question, where it is sought to thus impeach a witness, is not what the party claims as to the testimony given, but what it was in fact. The proper practice is, to set forth [44] the testimony given, and then what it is proposed to prove, that the appellate court may be able to see and know the facts upon which the ruling below was made, and not alone what the. party claimed. ’ If it appeared that the evidence on the former trial was rejected because it was not properly authenticated, or because it was shown by the bill of exceptions, instead of by some person present and hearing the same, a very different question would be presented. But as the record stands, we are justified in presuming that the court excluded the testimony because defendant’s claim was unfounded, and if so, there was no error. •5. — jaffutaequent term. Y. It seems that the verdict in this case was rendered at the April Term, 1864, of the Boone District Court, but that, the clerk failed and neglected to enter any iudgmeat thereon, though it does not appear that <jefen(jailt’s motion, in arrest and for a new trial, was overruled. Both parties were ignorant of this omission, until the September Term, 1865, when plaintiff moved for judgment on the verdict, and the sustaining of this motion is now assigned as errdr. The record shows that defendant appeared by counsel and resisted this motion. The necessity of notice that it would be made was thereby obviated, and we need not inquire into the effect of such a step in the case, in- the absence of notice. But it is insisted that the court had' no power to enter this judgment eighteen'months after the rendition of the verdict. The objection is based upon §§ 2664-2667 of the Revision. In our opinion, however, the case does not fall within any of the provisions therein contained. The object of this motion was not to amend or expunge an entry previously made, as for instance, to change the amount of a judgment or expunge one previously entered. There was the verdict in due form, the entry in the judge’s docket, the same judge was presiding,' and he was asked [45] to enter, not a new or different judgment, but, by supplying an evident and undisputed omission of tbe clerk, to make a record of wbat all parties supposed was done at the proper time. That tbe District Court has such power we entertain no doubt. The Julien Gas Light Co. v. Hurley, 11 Iowa, 520. 6._inter-est' VI. the judgment, when entered, was for the amount of the verdict, with interest thereon to September, 1865, making in the aggregate the sum of $813.75 (the verdict was for $750), and to this defendant very properly objects. Plaintiff asked for a nunc pro tunc order, and the entry should bave been for the amount of the verdict, with interest from the time the judgment ought to bave been entered. Plaintiff substantially concedes this error, and asks that it may be corrected. the correction will be ordered accordingly, and finding the judgment below otherwise correct, the proper judgment will, if plaintiff shall so elect, be entered in this court, otherwise it will be remanded, each party paying half the costs of this appeal. Cole, J., having been of counsel, took no part in tbe determination of this case.