Missouri, Kansas & Northwestern Railroad v. Murphy

The opinion of the court was delivered by Burch, J.: Failing in its effort to lodge in this court a case-made showing all the proceedings of the district court, the plaintiff in error attached to its petition in error a transcript of the record. The transcript shows no motion for judgment on the pleadirigs, no objection to the introduction of testimony under the pleadings, no ruling upon any such motion or objection, and no exceptions to any such rulings. Therefore, assignments of error numbered one, two and three cannot be considered. The propriety of such an instruction as is referred to in assignment of error No. 4 cannot be determined without viewing the evidence introduced at the trial, and the transcript contains no bill of exceptions. Assignments of error Nos. 6, 7, 8, 9 and 10 all require an examination of evidence which has not been preserved, in order to judge of their merit. The argument made in support of assignment No. 5 is based upon a consideration of the instructions to the jury, and their validity cannot be [675] ascertained without an investigation of proceedings not shown by the transcript. The answer of the plaintiff in error filed in the district court was denied under oath, and a discussion of its right to ,a judgment upon the pleadings would involve an entirely profitless expenditure of time. True, the court instructed the jury that the case of Pitcher and others against the Missouri, Kansas & Northwestern Railroad Company did not constitute a settlement of the issues in the case now under consideration, but, paraphrasing the brief of plaintiff in error, this court can say that it is evident that somewhere in the case facts supporting the instruction were either admitted by the plaintiff in error or were established in some other way. After the filing of its original brief in this court the plaintiff in error filed a supplemental brief, raising for the first time in the history of the case, either in this court or in the district court, a question relating to the validity of the selection of the judge who presided at the trial in place of the regular judge, who was disqualified. The question cannot be considered. Section 544 of the civil code (Gen. Stat. 1901, §5028) requires that in a proceeding in error in this court the petition in error shall set forth the errors of which complaint is made, whether the purpose be the reversal, vacation or modification of the judgment of the district court. The petition in error in this proceeding makes no reference whatever to the matter discussed in the supplemental brief; hence, a judgment of vacation upon the ground urged would be purely gratuitous, and without support in the record. The judgment of the district court is affirmed. All the Justices concurring.