Brackett v. Cunningham

• Decision Date: 17 November 1890
• Citation: 44 Minn. 498,47 N.W. 157
• Parties: BRACKETT v CUNNINGHAM ET AL.
• Court: Minnesota Supreme Court

44 Minn. 498

47 N.W. 157

BRACKETTvCUNNINGHAM ET AL.

Supreme Court of Minnesota.

Nov. 17, 1890.

(Syllabus by the Court.)

1. The rule heretofore laid down that, where a determination of an appeal depends upon the determination of an issue of fact, the settled case must show affirmatively that all of the testimony pertaining to such issue is presented, followed and applied.

2. Alleged erroneous rulings of the trial court relating to the exclusion of certain testimony considered and disposed of.

Appeal from district court, Ramsey county; WILKIN, Judge.

Hall & Kirkpatrick and John D. O'Brien, for appellants.

Fish & Evans and W. H. Mead, for respondent.

COLLINS, J.

Upon the ground that the testimony produced on the trial of this action clearly established that plaintiff and the witnesses Whitman and Dodge were copartners in business at least as to defendants, the latter strenuously contend, upon appeal, that the verdict was not justified by the evidence, and that a new trial must be granted. The question as to whether the alleged partnership actually existed, as claimed by defendants, and denied by plaintiff, was undoubtedly made the principal one upon the trial by all concerned, and the jury were so informed by the learned judge presiding, in a full and accurate charge, to no part of which did either party except. We are unable to say that the verdict was not justified by the evidence, for the settled case does not purport to contain all thereof.

1. It has been held repeatedly in this court, the most recent case being Mead v. Billings, 40 Minn. 505,42 N. W. Rep. 472, that, where a determination of the appeal depends upon an issue of fact, the settled case must show affirmatively that all of the evidence pertaining to the issue is presented. In this instance the certificate is palpably insufficient and defective, for in it the judge merely states that “the within is allowed and signed as the settled case,” and the omission referred to is not elsewhere supplied. It is not absolutely necessary that the essential fact be made to appear in the certificate signed by the judge, but it may be made apparent otherwise in the settled case. Coleman v. Reierson, 36 Minn. 222,30 N. W. Rep. 811.

2. Defendants excepted to several rulings made by the court upon the trial, relating to the admission or exclusion of certain testimony. But two of these rulings need be referred to. The court was right in refusing to allow appellants to show that all of the...