Odden v. Lewis

Granger, J.

The question is presented as to the condition of the record being such as to permit us to consider this case on its merits, 'i he petition shows it to be a case for malicious trespass on the lands of plaintiff, by the defendants, by cutting trees, destroying fences, and plowing and scraping the earth. The trespass is alleged to have been done in pursuance of a mutual understanding and agreement by the defendants. While we may presume, from the arguments and some parts of the record, that an answer was filed, and an issue presented and tried, there is no way of knowing irom the record what the issue is, for the abstract neither sets out the answer, nor, in fact, any pleading other than the petition. Looking to the instructions for the court’s statement of the issue, and there is simply the statement that the first and second instructions correctly stated the issues, and the two instructions are omitted; all the others appearing. From the instructions in the record and the evidence it appears that the issues involved a conroversy about a public highway that had once been established, and then vacated, and there seems to be a claim of an establishment by prescription, that is in issue. Nothing whatever as to a highway appears in the petition, so that we have no way of knowing what the issues are. The assignments of error and *748 the arguments are with reference to instructions given and refused and the admission and exclusion of evidence. We cannot, without knowledge of the issues, know whether the instructions were applicable thereto or not, nor can we know whether the rulings on evidence are correct or not. As to the instructions, they are not erroneous as abstract propositions of law, and, being abstractly correct, we must assume them as pertinent to the issues being tried, till the contrary appears, which cannot be with the condition of the record. The same is true of the rulings on evidence. We assume them to be correct till it is made to appear otherwise. As, with the condition of the record, none of the assignments argued can be considered, the judgment must stand affirmed.