Mudge v. Agnew

Rothrock, J.

i. MtACTicEin tlie supreme court: abstract: motion court: ab-to strike. I. With the submission of the cause • there was presented by appellee a motion to strike from appellant’s abstract what purports to be the evidence in the cause, upon the ground that the record does not show that the same was preserved by bill of exceptions, nor otherwise made part of the record. This motion is supported by a certificate of the clerk of the Circuit Court to the effect that no bill of exceptions has ever been filed. The appellant resists the motion, not by producing a transcript showing that the evidence was properly made of record, but by the claim that his abstract purports to contain all the evidence, and that such statement in the abstract is sufficient. The abstract would be sufficient if it were founded on the record as made in the court below. But if it sets forth evidence not made of record it is the right of the appellee, on motion, to have such evidence stricken from the abstract. This is the constant practice in this court. We think the motion must be sustained.

II. Exceptions were taken to certain instructions given by the court to the jury. As we have no evidence in the case these instructions cannot be properly considered without at least some statement as to what facts the evidence tended to establish. An instruction may not state all of an abstract proposition of law and yet be complete as applicable to the facts of the case. Kyser v. K. C. St. J. & C. B. R. Co., ante 207. The instructions complained of in this case are of this character. There may have been such a state of facts as fully warranted the giving of them.

Aiutirmed.