Roe v. Wilmot

Adams, J. , . 1. PRACTICE 111 courtTtSiudo nom — An order was made at the appearance term that the case should be tried upon written evidence. It is before us, therefore, for a trial de novo, if it is triable at all. The appellee insists that it is not triable at all, because the abstract does not purport to contain all the evidence. The abstract purports to contain “all the evidence bearing upon and introduced to sustain the issues and findings as to which the plaintiff appealed. ” In our opinion this is not sufficient. We do not decide whether it would have been sufficient if the abstract had purported to contain all the evidence introduced upon the issues, etc. Such statement would have been broader than the one made, and less open to objection. There might have been evidence introduced to sustain the issues, and which in the judgment of the plaintiff did not bear upon the issues. Such evidence the abstract does not purport to contain. In Lea v. Roads, 22 Iowa, 408, a bill of exceptions which purported to contain the substance of the material parts of the evidence [691] was held to be insufficient. The court said: “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. ” In McKenzie, Adm’x, v. Kitler, 27 Iowa, 254, a bill of exceptions was held to be insufficient which stated that the evidence was given in substance, and that no other material evidence was heard by the court. We think that the principle involved in the objection urged to the abstract is substantially the same. The plaintiff insists that the court erred in not directing an immediate sale of the real estate. But the action was tried the last of February. It appears to us, as we doubt not it did to the court below, that the season was too far advanced to give sufficient time to advertise and sell farm lands to advantage that spring. We think, therefore, that the court wisely ordered that they should be leased for the cropping season of that year, and the rent, with the other personal property, be applied toward the payment of the debts. In our opinion the judgment of the court below should be Affirmed.