Kloss v. Sanford

COLLINS, J. Appeal from a judgment entered in district court affirming a justice’s judgment in plaintiff’s favor in an action of replevin, the appeal to the district court being on questions of law alone. The only question is as to the sufficiency of the evidence to sustain the judgment, and that question is not before us, because it does not appear that all of the evidence given on the trial in justice’s court was returned to the district court. The certificate on appeal to the district court, signed by the justice, was as follows: “I hereby certify that I have compared the foregoing with the original entries in my docket, and that the same is a full and correct transcript therefrom, and of all the proceedings had before me in said action; that the affidavit, bond, and notice of appeal, together with all the process and other papers relating to the action, and filed with me, or had before me therein, are herewith returned and attached, and numbered from one to ten, inclusive; and that, together with the foregoing transcript, they contain a full, correct, and complete statement of all the proceedings had before me in said action.” Under G. S. 1894, § 4961, the evidence is not properly to be entered upon the justice’s docket, nor is there any claim that it was in this instance. The law (section 5070) provides that upon the request of either party the justice, when the appeal is on a question of law alone, “Shall return to the district court a true transcript of all the evidence given upon the trial.” There is nothing in the certificate in question to show that the return contains all the evidence given upon the trial. 'It may be that a full, correct, and complete statement of all the proceedings had before the justice was embraced in the return, and yet part or all of the evidence omitted. In Continental Ins. Co. v. Richardson, 69 Minn. 433, 72 N. W. 458, this court held a justice’s certificate on appeal insufficient to show that all the evidence had been returned. Although it does not so appear from the opinion, that certificate was in the same language as the one now before us. With this con [512] dition of the record, the sufficiency of the evidence to sustain the judgment cannot be considered. Judgment affirmed.