Ryan v. Madden

• Decision Date: 11 April 1891
• Citation: 26 P. 679,46 Kan. 245
• Parties: RYAN v. MADDEN et al.
• Court: Kansas Supreme Court

26 P. 679

46 Kan. 245

RYAN v. MADDEN et al.

Supreme Court of Kansas

April 11, 1891

Syllabus

1. Where there is attached to a petition in error a case made in which are found what purport to be copies of the pleadings and proceedings in the cause, but which are not specifically referred to and identified by marks or numbers, and there is attached to the case made a certificate of the judge and the attesting signature and seal of the clerk, the presumption will be that the copies of the pleadings and proceedings therein are what they purport to be, and that all were included in the case made when it was served upon the defendants and settled and signed by the judge.

2. The sufficiency of the evidence to sustain the verdict cannot be examined unless the record properly shows that all the evidence is preserved.

3. A general exception to a charge embracing various propositions of law is insufficient to bring before the court anything except the general scope and effect of the charge. If a party objects to any particular proposition which it contains he should point out the same, and take an exception thereto.

Error from district court, Chase county; FRANK DOSTER, Judge.

Thomas H. Grisham, S. N. Wood, and A. M. Mackey, for plaintiff in error.

F. P Cochran and C. N. Sterry, for defendant in error.

OPINION

JOHNSTON, J.

This was an action of ejectment to recover possession of a tract of land in Chase county. The verdict and judgment were given in favor of the defendants, and the plaintiff alleges error. The defendants challenge the sufficiency of the record, and claim that there is nothing here for review, for the reason that the pleadings and proceedings now found within the case are not specifically marked and identified. There is attached to the petition in error what is termed a "case made," in which there is, first, a brief recital of the dif ferent proceedings in the trial, which are referred to as being "hereto attached," without special designation. Then follows what purport to be copies of pleadings, evidence, instructions, verdict, motion for a new trial, and judgment; and at the end of all these is a stipulation of both parties as to the time of settling the case, which is followed by the certificate of the judge. In this state of the record there can be no question but that the pleadings and proceedings are what they purport to be, and a fair presumption is that all were included in the case made when it was served upon the defendants and settled and signed by the judge. While the case is here for review, we are unable to examine the points contended for by plaintiff in error. One of these is that the evidence is insufficient to sustain the verdict and judgment; and the other, that the jury were improperly instructed in a certain particular. The sufficiency of the evidence cannot be examined unless it properly appears that all the testimony is included in the record. There is a recital at the beginning of the case made that "the plaintiff, to maintain the issues on his part, offered his evidence and rested; and the defendants, in order to maintain the issues on their part, offered all their evidence and rested; all of which evidence is hereto attached." An inspection of the record, however, shows that after the defendants had rested testimony was offered by each in rebuttal, and still more on surrebuttal. There is no statement at the end of the testimony showing that the case made contains all that was offered. There is in the record a certificate by the official stenographer that what precedes it is a full and correct transcript of the testimony in the case; but it is not within the province of the stenographer to determine whether a case...