18 Or. 85 | Or. | 1889
The appellant seeks to reverse tbe judgment in this case upon the ground tbat tbe respondent failed to prove a cause sufficient to be submitted to tbe jury. Tbe counsel for tbe appellant, after tbe evidence for tbe respondent was given at tbe trial, moved for a judgment of nonsuit, wbicb tbe circuit court overruled. He thereupon submitted evidence on tbe part of tbe appellant, and after doing so renewed bis motion for a nonsuit, wbicb tbe said court again overruled. He now brings tbe case to this court, and insists tbat the circuit court committed error in its said rulings. He has brought here what purports to be tbe evidence in the case, but whether it is all tbe evidence does not appear by any statement or certificate. It may be, and very likely is, tbe substance of all tbe evidence given upon tbe trial; but it has been repeatedly held tbat, unless tbe bill of exceptions contains an affirmative statement tbat such is tbe fact, this court will not consider it in determining whether or not it is sufficient to support tbe verdict. Tbe court will not infer tbat tbe evidence contained' in tbe bill of exceptions is all tbe evidence given at tbe trial, unless tbe bill of exceptions contains a positive statement to that effect. This rule is universally adhered to, and is founded, I suppose, upon tbe principle tbat tbe judgment of a court is evidence of its own rectitude; tbat the fact of its rendition creates a presumption in its favor tbat it would not have been given unless all tbe material facts in tbe case entitling tbe party to a recovery bad been proved. Such presumption is conclusive in a collateral action, and cannot be overcome in a direct proceeding except by a positive statement in tbe bill of exceptions to tbe effect tbat it contains all tbe evidence given upon tbe trial. Tbe point is conclusive against tbe appellant’s right to a reversal of tbe judgment herein, and consequently it must be affirmed.
