6 Colo. App. 291 | Colo. Ct. App. | 1895
delivered the opinion of the court.
In May, 1889, the plaintiff in error brought a suit in the district court of Jefferson county against Richard More and Thomas- Howlett to recover damages for the alleged trespasses of the defendants. According to the complaint and the evidence which was received, Downing was the owner of certain lands in that county, and had run a ditch through a part of them to irrigate some of his fields. By some proceedings which are not disclosed by the record, though probably they were in the nature of condemnation proceedings, an en
Under this condition of the proof, and on the conclusion of the plaintiff’s evidence, the defendant moved for a nonsuit, which was granted. This is assigned as error. Manifestly the nonsuit was inevitable. It has several times been decided in this state that if there is not enough in the record to support a judgment if one had been entered for the plaintiff, he cannot complain of any error which the court committed, either in admitting or rejecting testimony. Mistakes of the trial court furnish no basis for an assignment of error, unless either on the testimony whichhas been introduced, of on bliis, and that which has been offered and rejected, and which is admissible, a case is made out for the complaining party. Clanton v. Ryan, 14 Colo. 419; Nevitt v. Crow, 1 Colo. App. 453; People v. Weiss-Chapman Drug Co., 5 Colo. App. 153.
Had the court admitted all the testimony which counsel tendered, and the plaintiff had then rested his case, he would not have been entitled to judgment, because he failed to prove acts of the defendant which would make him liable. There is some suggestion in the record that the trial court was referred to .a case in the supreme court of the state which would throw some light on the controversy and tend to show Howlett had been guilty of the acts complained of. While the decisions of that court are matters of which all tribunals in the state take notice, we do not understand that there is any rule of evidence or any rule of practice which would make the record in any other suit evidence in a cause without its production and offer. Nor do we understand how the record in any other suit can be resorted to by any court for the purposes of proof or the ascertainment of facts essential to charge the defendant with a liability, unless in some one of the ways known to the law the record is produced and legitimately brought to the court’s attention.
• Affirmed.