Porth v. Gilbert

DeAkmond, 0. This was an action of ejectment. 'The bill of exceptions recites that “the plaintiffs intro [127] •duced documentary evidence tending to prove the allegations of the petition, and the same being held by the court to be insufficient to establish a legal title, plaintiffs offered verbal evidence tending to prove possession, and ■defendant offered evidence tending to prove the allegations of the answer.” Plaintiffs had the verdict and judgment, and defendant appealed. In a supplemental motion, supported by affidavits, a new trial was asked, because plaintiffs’ counsel, in the absence of defendant’s •counsel, and during a temporary absence of the judge, read in his argument to the jury a certain deed, “in spite of the rulings of the court, both on instructions and •evidence,” and because the instructions given by the ■court had been lost and could not be copied into a bill of exceptions “if a new trial should be denied.” I. We cannot learn from the record whether or not plaintiffs’ counsel went out of the record in his argument to the jury, as defendant asserted, nor can we form an opinion as to the probable or possible effects of the abuse, if any. With nothing upon which to rest a judgment of our own we must indulge the usual presumption and .accept as correct'the judgment of the trial court. II. Birney v. Sharp, 78 Mo. 73, disposes of the •other point in the case. There the instructions appear to have been lost after the motion ior a new trial had been overruled; here the fact of their loss is urged as .affording a' reason for sustaining the motion. But the principle is the same; the instructions are not in the record, and we, therefore, presume that as to them the action of the court below was not erroneous. State v. Jefferson, 77 Mo. 139. It would seem that in this case the loss might, with ease and propriety, have 'been supplied. But it was not, and the mere fact of the loss is no ground for a reversal of the judgment appealed from, which should be affirmed. All concur, except Henry, C. J., absent.