Fairbairn v. Haislet

G-bangeb, C. J. I. H. Shaver was attorney for the plaintiff in the proceeding before the board at its January session, 1892, when the order designating the papers was made. At the trial of the issue in the district court, he was called as a witness by plaintiff, and interrogated as to the proceeding before the board by questions tending to show whether or not there was a contest before the board from which an appeal could be taken. The evidence was admitted under objection, and it is now urged that the court erred in admitting it. The evidence tended to prove the allegations or statements of the pleading filed by plaintiff, on which defendant took issue by his answer. It is not for us to question the sufficiency of the issue formed. It was made by the parties without objection, and was for trial. The evidence was pertinent and material to the issue joined. The pleading filed plainly indicated the line of inquiry to follow, and, if it was improper, defendant should have declined such an issue, by attacking the pleading as insufficient or improper. The part of the pleading we have quoted shows a purpose to prove facts not of record in the proceedings of the board, and the further averments specify the particular facts. Any legal objection was plainly apparent on the face of the pleading. II. Upon the trial the district court must have found that there was a contest from which an appeal could be taken. It is insisted to us that the evidence fails to show such a contest, and,further, that it shows, without dispute, that there was no such contest. These questions we can not determine, under the condition of the record. They involve an examination of the evidence. Appellee files an additional abstract, in which some additional evidence is referred to, and it is stated 146 that the bill of exceptions contains all the evidence, and. that appellant’s abstract ‘‘only sets out a very small part of the bill.” It is then stated that the abstract and the amended abstract contain only a small part of the bill of exceptions and evidence. The statements in the amended abstract are to be taken as true. Marsh v. Smith, 73 Iowa, 295, 34 N. W. Rep. 866; Acton v. Coffman, 74 Iowa, 17, 36 N. W. Rep. 774; Foley v. Hefferon, 70 Iowa, 572, 31 N. W. Rep. 877. Appellant has filed no denial of appellee’s abstract, and this case is clearly within the rule of those cited. Without the evidence all before us, we can not determine what it proves or disproves, which are the only remaining questions presented. See Shattuck v. Insurance Co., 78 Iowa, 377, 43 N. W. Rep. 228; Neitz v. Hilker, 51 N. W. Rep. 23. The judgment below is affirmed.