Barker v. Fleming
| Decision Date | 06 May 1944 |
| Docket Number | 36125. |
| Citation | 158 Kan. 549,148 P.2d 493 |
| Parties | BARKER v. FLEMING et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Generally a litigant, dissatisfied with disposition of cause in trial court, must see that such record is made as will enable Supreme Court to review errors of which he complains on appeal thereto, and his failure to provide complete transcript of evidence or procurement of partial or incomplete transcript excludes from appellate review all features of litigation dependent upon such evidence. Gen.St.1935, 60-3311.
The Supreme Court, on consideration of trial court's ruling overruling demurrer to evidence or motion for directed verdict, cannot say that there was no evidence to support ruling, in absence of stipulation or agreement that all material evidence had been included in appellant's transcript, as all competent evidence must be accepted as true and all reasonable inferences therefrom indulged in favor of party adducing it. Gen.St.1935, 60-3311.
Where defendant-appellant's transcript of evidence does not include all testimony, there is no stipulation or other agreement that it contains all testimony material to determination of issues, plaintiff insists that it does not contain all such testimony, and nothing appears in record to preclude recovery by plaintiff as matter of law, assignments of error depending on sufficiency of evidence, as in overruling defendant's demurrer to plaintiff's evidence and refusing to instruct jury to return verdict for defendant, will not be reviewed by Supreme Court. Gen.St.1935, 60-3311.
The burden is on appellant, seeking review of questions depending on evidence, to produce transcript containing sufficient evidence to establish his position beyond question, either by furnishing complete transcript or by furnishing partial one on agreement between parties that it contains all evidence material to issues. Gen.St. 1935, 60-3311.
Appellants may not include in their transcript of evidence only such parts of record as they deem necessary for determination of issues on appeal, as in case of abstract, in absence of statutory provision for filing of counter transcript especially since appellee cannot properly prepare counter abstract without transcript containing all evidence material to issues. Gen.St.1935, 60-3311; Gen.St.Supp.1943, 60-3312.
Where parties seek appellate review of questions depending solely on the sufficiency of the evidence it is incumbent upon them in the absence of a stipulation or agreement doing away with its necessity, to procure an official transcript of all the evidence, and when they fail to furnish such transcript, or procure one containing only portions of the testimony, which is challenged as inadequate for an effective review, the evidence will not be reviewed and their appeal will be dismissed.
Appeal from District Court, Butler County; George J. Benson, Judge.
Action by W. H. Barker against Joseph B. Fleming and another trustees of the estate of the Chicago, Rock Island & Pacific Railway Company, for damages resulting from a fire caused by defendants in operation of a railroad. Judgment for plaintiff, and defendants appeal. On plaintiff's motion to dismiss the appeal.
Appeal dismissed.
Clayton M. Davis, of Topeka (J. E. DuMars, of Topeka, and L. J. Bond of ElDorado, on the brief), for appellants.
J. B. McKay, of ElDorado, for appellee.
This was an action instituted under the provisions of G.S.1935, 65-232, to recover damages resulting from a fire alleged to have been caused by defendants in the operation of its railroad. The plaintiff prevailed and the defendants appeal.
The sufficiency of the pleadings is not involved in this controversy. Briefly, it can be stated the petition alleged the defendants in the operation of their railroad set a fire along its right-of-way, which fire burned over and across other combustible material, between the point of its origin and plaintiff's real estate where it burned and destroyed a house, barn, granary, garage and other property belonging to the plaintiff. The answer denied the fire was caused by the operation of the railroad and alleged that if it was started in the operation thereof the sole and proximate cause of the destruction of plaintiff's property was his carelessness and negligence in permitting inflammable and combustible material and vegetation to accumulate and remain upon his real estate and that he failed to exercise ordinary care and precaution to guard against and prevent the spread and communication of fires to his property, the exercise of which care would have prevented the loss and damage sustained by him.
At the trial, which was to a jury, eight witnesses testified for the plaintiff and nine for the defendants. For reasons to be presently disclosed it is unnecesary to relate all the testimony or its substance. Summarizing, in addition to proof of value of the buildings at the time of their destruction, it can be stated the plaintiff's evidence disclosed that the fire started on the defendants' right-of-way at a point approximately 100 rods south of the plaintiff's buildings, shortly after a little yellow railroad car, propelled by a gasoline motor had been observed going down the railroad track and past the point where it was first observed, and that thereafter such fire spread to the north to the place where it reached the plaintiff's land and set fire to and destroyed his buildings. It also disclosed that no vehicle or person, save and except the railroad car referred to, and the person or persons riding thereon, had been seen by plaintiff's witnesses in the vicinity of where the fire originated. Defendants demurred to this evidence, and, when that demurrer was overruled produced their evidence. At the close of all the testimony they requested the court to instruct the jury to return a verdict in their favor. This requested instruction was refused. Thereafter the cause was submitted to the jury which in due time returned a verdict in favor of plaintiff.
Appellants' specification of errors raises but two questions, a fact which they candidly admitted on oral argument. Those issues are that the trial court erred in overruling their demurrer to the plaintiff's evidence and in refusing to instruct the jury to return a verdict in their favor.
At the outset, and before we can review any of the alleged errors complained of, we must first determine a question raised by appellee, through the medium of a motion to dismiss the appeal, based upon the ground that appellants have not caused a complete transcript of the evidence to be prepared and filed. Appellee points out, and appellants admit, that notwithstanding the fact seventeen witnesses testified at the trial the transcript procured and filed by the appellants covers the testimony of only four of appellee's witnesses and one of appellants. It is urged that this failure to furnish a complete transcript precludes a review of the issues raised by the specification of errors and requires a dismissal of the appeal. This point is a serious one and under the circumstances of this case seems to be insurmountable.
In a long line of decisions dealing with appellate procedure we have established the general proposition that a litigant who is dissatisfied with the disposition of a cause in the trial court must see that such a record is made as will enable this court to review the errors...
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Bisagno v. Lane
...determination of this controversy. That being so, we are compelled to follow the general principle announced in Barker v. Chicago R. I. & P. R. Co., 158 Kan. 549, 148 P.2d 493, as follows: 'Where parties seek appellate review of questions depending solely on the sufficiency of the evidence ......
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Holmes v. Kalbach
...the evidence, In re Estate of Fitzroy, 172 Kan. 339, 240 P.2d 163, Bisagno v. Lane, 168 Kan. 153, 211 P.2d 85, Barker v. Chicago, R. I. & P. R. Co., 158 Kan. 549, 148 P.2d 493, and that when the overruling of a motion for a new trial is not assigned as error trial errors or any possible err......
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Addington v. Hall
... ... 467, 11 P.2d 720; Farmers State Bank v. Crawford, ... 140 Kan. 295, 37 P.2d [160 Kan. 271] 14; ... [160 P.2d 651] ... and Barker v. Chicago, R. I. & P. R. Co., 158 Kan ... 549, 551, 552, 148 P.2d 493, and cases there cited ... The ... reason for the rule is well ... ...
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