39 Mo. 401 | Mo. | 1867
delivered-the opinion of the court.
There is but one point in this case to be considered. It was a suit brought by the respondent against the appellant in the Kansas Court of Common Pleas, and tried without the intervention of a jury. One instruction was given at the instance of the plaintiff below which is preserved in the bill of exceptions, and the fact stated that instructions were asked on the part of the defendant, but they are not set out either in form or substance.
No part of the evidence is contained in the bill of exceptions, except the note which was relied upon by the defendant, Bouton, as a set-off to the plaintiff’s claim.
It is nowhere shown that this was the only evidence in the cause, and this court cannot assume that fact to be true. The judgment recites the fact that after “ hearing the evidence ” the court found the amount of defendant’s indebtedness to plaintiff, and the declaration of law made by the court assumed his right to recover “ upon the evidence.” To ascertain whether or not the instructions given or refused in any case are-.erroneous, the evidence upon which they are based must be preserved in the bill of exceptions. The previous decisions of this court upon that point are so
The judgment of the court below must be affirmed.