Byington v. McCadden

Day, J. 1. Instructions: inapplicability of. I. At the instance of plaintiffj the court gave the following instructions: “ If satisfied that the five hogs in- controversy in this suit were levied on by defendant by collusion with Sharpies, for the sole purpose of aiding said Sharpies in a wrongful conversion thereof, under the local regulation, known as the hog law, and that such levy was not necessary to satisfy his execution, defendant is liable in this action.’ ’ -The abstract, which purports to set forth all the testimony introduced, contains no evidence to which this instruction [218] can apply. It is based upon a state of facts of which there is no proof. It was, therefore, error to give it. Moffitt v. Cressler, 8 Iowa, 122, and cases cited. State v. Arthur, 23 id. 430, cases cited in Ham. Dig., p. 494, § 31. 2. Practice: bill of exceptions. II. Appellee urges in objection to the abstract, that no bill of exceptions was properly settled or filed in the case. Judgment in the cause was entered on the 9th day of December, 1871. By agreement defendant had thirty days to submit to plaintiff his bill of exceptions. The bill was not filed in the clerk’s office until March 26, 1872. It does not, however, appear that it was not submitted to plaintiff, and signed within the time agreed upon. No valid objection to it, therefore, appears in the record. 3. waiver of ruling. III. Appellee further urges that whatever error’s may have been committed in the trial of the cause are without prejudice, because the appeal was not properly pending in the circuit court. The plaintiff moved the circuit court to dismiss the appeal. This motion was overruled. From this ruling of the court the plaintiff has taken no appeal. We must, therefore, now presume that the cause was properly pending in that court. Reversed.