Lea v. Roads

Wright, J. l. Bill op ex-certification of evidence. The only point made in this court is that the verdict was not sustained by the evidence, and, as a consequence, that the court' below erred in refusing a new trial. Appellees insist that the recor(j does n0^ sufficiently show that we have all the testimony and that if it'does,’the verdict was warranted. [409] "We turn, then, first, to the record and find it in this condition : The plaintiff was “ introduced as a witness and testified substantially as follows.” Plaintiff and defendant were the only witnesses. Their correspondence, running through several years, was also produced. The bill of exceptions recites “ that the cross-examination of Hoads (defendant) was long and severe, and this bill of exceptions contains merely the substance of the material parts of it,” and concludes: “ The above was substantially all the evidence introduced in the cause.” And now the question is, in this condition of the record, can we in view of the former adjudications of this court, and well-settled rules, say that we have all the testimony, and thus re-examine defendant’s claim for a new trial. It seems to us, not. Upon this subject there is an unbroken series of decisions, that, before this court will interfere with a verdict because against the evidence, the bill of exceptions must embrace or embody the whole evidence; and where it does not, this court will presume that there was sufficient to warrant the verdict. As to this there is and can be no controversy. If it is all embodied, it is easy to so state in plain and concise language. The judge knows whether it does or not. If there is any thing omitted, in his opinion, he should have it inserted, when counsel ask such a certificate. And, in the discharge of this duty, there should be neither hesitation nor refusal. And particularly so, as by the language of the act of 1866 (ch. 49, p 43), it is provided that a cause may be reviewed here without a motion for a new trial in the court below, or finding of facts, where the judge certifies that the record contains all the evidence. Why there should be difficulty on this subject, as suggested by counsel, we cannot conceive. And if, in this particular case, injustice shall result, for want of the proper certificate, while we shall regret it, we could not, [410] for that reason depart from well-settled rules. To the suggestion, however, that some records have been considered by us, in no essential particular different from this, it is answered that the objection was not made; parties did not differ, and, being technical, we did not ourselves allow the case to turn on it. Now, it was held, in effect, in State v. Lyon (10 Iowa, 340), and State v. Hockenberry (11 Id., 269), that a recitation that the bill of exceptions contained the substance of the testimony, was not sufficient to show that it was all before us. And, in principle, these cases decide this. It is not pretended that the sidstance of all the cross-examination of the defendant is certified to us, but merely the substance of the material parts. We should have all the evidence, as the jury had. They judged of what was material, and the facts, as detailed to them, are what the party should bring here, if he expects a new trial on this ground. The rule is plain. It is just and fair to litigants. If we dispense with a compliance with it, and allow any thing less to answer in one case, then something less'will do in the next, and soon it would be of little practical use or effect. In no other method can we have that certainty pre-eminently demanded upon such questions in a court of last resort. Indeed, in our conviction, a rule less strict would tend to impair and prejudice the rights of litigants, and this leads us to re-affirm what we have heretofore said, and to firmly uphold, rather than lower, the standard. As indicative of the strict rule held on this subject in other States, see Ford v. Mitchell (21 Ind., 54, and the cases there cited); also Knowlton v. Culver (1 Chandler, 214); Harmon v. Thornton (2 Scam., 355) ; Buckmaster v. Cool (12 Ill., 15); Love v. Moynahan (16 Id., 219). We do not hold that the very words, “this was all the testimony,” should be used to answer the rule. To say, [411] “and there was no other testimony,” or, “the case'was submitted on this testimony alone,” or like language, would be sufficient. The bill of exceptions before us, however, falls far short of the cases supposed. If “ substantially all ” means “ all,” then let it be so stated, and not leave to inference that which is susceptible of being placed beyond all doubt. Nor, finally, in answer to a suggestion of counsel, should there be difficulty in complying with tbis rule, from a supposed necessity of stating the precise words used by witnesses. This is not required. Such a literal transcript is no more expected than a daguerreotype of each witness. The judge hears the testimony — he may readily know what it was, not every word, every question and answer, hut what did this witness or the other, and all of them, testify to — and, knowing this, he ought to he able to certify to the fact that it is all embodied in the hill of exceptions. The certainty required may he easily attained. Affirmed.