Darst v. Swazee
| Citation | 11 P.2d 977,135 Kan. 458 |
| Parties | DARST v. SWAZEE et al. |
| Decision Date | 04 June 1932 |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court.
Questions arising on evidence and proceedings are not open for consideration on appeal, in absence of official transcript of evidence or agreement of parties as to what was pertinent evidence.
Objections to instructions are not available on appeal where evidence is not presented.
1. In the absence of an official transcript of the evidence or of an agreement of the parties as to what was the pertinent evidence in the case, questions arising on the evidence and proceedings are not open for consideration upon appeal.
2. Without the evidence this court cannot determine that an instruction, although it may have been incorrect in some particular, was prejudicial error, as only prejudicial error is ground for reversal.
Appeal from District Court, Sedgwick County, Division No. 2; Thornton W. Sargent, Judge.
Action by J. P. Darst against William Swazee and another. Judgment for plaintiff, and defendants appeal.
Appeal dismissed.
J Graham Campbell, W. M. Glenn, and Clifford E. Branch, all of Wichita, for appellants.
George McGill, H. C. Castor, Victor J. Rogers, and J. Harold Jorgensen, all of Wichita, for appellee.
This action was brought by plaintiff to recover damages from defendants alleged to have resulted from a collission between plaintiff's automobile and defendants truck occasioned by defendants' negligence. The jury found in favor of plaintiff, fixing the amount of his recovery at $1,700. Defendants appeal, and their only complaint is that the facts found by the jury in answers to special questions and in the verdict are not supported by the evidence, and they also urge some objections to the instructions given or refused by the court.
Plaintiff challenges the right of defendants to a review of the record presented because the evidence on which the alleged errors depend has not been preserved as the law requires, in that no official transcript of the evidence has been obtained and presented, and that in its absence there is nothing the court can consider. Parts of the evidence were printed in the abstract, but it is conceded that much of the evidence is not preserved. Defendant says that the absence of an official transcript does not necessarily defeat an appeal, and that he has presented evidence which he deems to be controlling, and further that the evidence omitted would not support plaintiff's theory of the case or justify the jury in the findings and verdict returned. It may be granted that a transcript of the evidence is not essential where the error relied on is that the petition does not state a cause of action nor does not warrant the judgment rendered or that the special findings are contrary to the verdict or that the agreed facts do not justify the judgment rendered.
The evidence is not required, of course, where the parties agree that certain evidence stated is all that related to a challenged finding, and still other questions not dependent on the evidence may be reviewed without bringing up a full transcipt of the evidence, but where the errors assigned depend upon the evidence, the appellant must obtain an official transcript of the evidence or an agreement of the adversary that the case may be...
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Barker v. Fleming
...... Co., 110 Kan. 171, 204 P. 144; Everett v. Everett, 110 Kan. 442, 204 P. 723; Sproul v. Russell, 135 Kan. 620, 11 P.2d 978; Darst v. Swazee, 135 Kan. 458, 11 P.2d 977; Kininmouth v. Carson, 156 Kan. 808, 137 P.2d 173. Under similar. circumstances where a review of the ......
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Bisagno v. Lane
...Kan. 486, 491, 148 P. 755; Everett v. Everett, 110 Kan. 442, 204 P. 723; Buchwalter v. Henrion, 111 Kan. 781, 208 P. 645; Darst v. Swazee, 135 Kan. 458, 11 P.2d 977; Sproul v. Russell, 135 Kan. 620, 11 P.2d 978; Farmers State Bank v. Crawford, 140 Kan. 295, 37 P.2d 14; Mercer v. Kirkwood, 1......
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Aguettaz v. Chi., M., St. P. & Pac. Ry. Co.
...assigned as erroneous appear from their face to be inherently so. We think the language in the recent case of Darst v. Swazee, 135 Kan. 458, 11 P.(2d) 977, 978, is particularly applicable, where it was said: “Since the pertinent evidence is not before us, we cannot determine whether an inst......
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Leclercq v. Heimerman
...is before us. The record consists solely of the pleadings, the instructions and the journal entry. This is insufficient. In Darst v. Swazee, 135 Kan. 458, 11 P.2d 977, it was held: 'Without the evidence this court cannot determine that an instruction, although it may have been incorrect in ......