Wilmering v. Western Union Telegraph Co.

Deemer, J. We cannot dispose of this case on its merits on account of the condition of the record. The appellant’s abstract contains the following certificate- and statement: “The foregoing pages contain a true, correct, and complete abstract of the proceedings had in the above-entitled cause before the district court of' 193 Louisa county, Iowa, and which are material to a determination of the questions involved, and which were tried before said court, together with pleadings, rulings of the court on all questions, objections and exceptions thereto by counsel, together with the evidence and motions made to the shorthand reporter, and which was made of record, and now appears of record in the district court of Louisa county, Iowa.” Appellee filed an amended abstract, suggesting certain errors and inaccuracies, and expressly states that by this amendment it does not intend to state that the original abstract, with the amendment, contains all the evidence offered or introduced on the trial, and expressly denies that the abstract and the amendment do contain all the evidence offered on the trial of the case, and further states that it does not waive its right to insist that all the evidence offered upon the trial is not contained in the record before us. To this no response has been made by appellant. It is doubtful, to say the least, whether appellant’s abstract sufficiently states that it contains all the evidence introduced upon the trial. McCoy v. Emigrant Co., 76 Iowa, 720, 39 N. W. Rep. 703; Lieber v. Railroad Co., 84 Iowa, 97, 50 N. W. Rep. 547; In re Holderbaum, 82 Iowa, 69, 47 N. W. Rep. 898. But, however this may be, the appellee has denied that the two abstracts, taken together, present all the evidence, and this statement is in no manner controverted by appellant. As the questions discussed by counsel involve a consideration of the testimony adduced, we cannot consider them. Goode v. Stearns, 82 Iowa, 709, 47 N. W. Rep. 893; Turner v. Steam Co. 94 Iowa, 715; 61 N. W. Rep. 415. The judgment is affirmed.