22 Iowa 408 | Iowa | 1867
Upon this subject there is an unbroken series of decisions, that, before this court will interfere with a verdict because against the evidence, the bill of exceptions must embrace or embody the whole evidence; and where it does not, this court will presume that there was sufficient to warrant the verdict. As to this there is and can be no controversy. If it is all embodied, it is easy to so state in plain and concise language. The judge knows whether it does or not. If there is any thing omitted, in his opinion, he should have it inserted, when counsel ask such a certificate. And, in the discharge of this duty, there should be neither hesitation nor refusal. And particularly so, as by the language of the act of 1866 (ch. 49, p 43), it is provided that a cause may be reviewed here without a motion for a new trial in the court below, or finding of facts, where the judge certifies that the record contains all the evidence. Why there should be difficulty on this subject, as suggested by counsel, we cannot conceive. And if, in this particular case, injustice shall result, for want of the proper certificate, while we shall regret it, we could not,
Now, it was held, in effect, in State v. Lyon (10 Iowa, 340), and State v. Hockenberry (11 Id., 269), that a recitation that the bill of exceptions contained the substance of the testimony, was not sufficient to show that it was all before us. And, in principle, these cases decide this.
It is not pretended that the sidstance of all the cross-examination of the defendant is certified to us, but merely the substance of the material parts. We should have all the evidence, as the jury had. They judged of what was material, and the facts, as detailed to them, are what the party should bring here, if he expects a new trial on this ground. The rule is plain. It is just and fair to litigants. If we dispense with a compliance with it, and allow any thing less to answer in one case, then something less'will do in the next, and soon it would be of little practical use or effect. In no other method can we have that certainty pre-eminently demanded upon such questions in a court of last resort. Indeed, in our conviction, a rule less strict would tend to impair and prejudice the rights of litigants, and this leads us to re-affirm what we have heretofore said, and to firmly uphold, rather than lower, the standard.
As indicative of the strict rule held on this subject in other States, see Ford v. Mitchell (21 Ind., 54, and the cases there cited); also Knowlton v. Culver (1 Chandler, 214); Harmon v. Thornton (2 Scam., 355) ; Buckmaster v. Cool (12 Ill., 15); Love v. Moynahan (16 Id., 219). We do not hold that the very words, “this was all the testimony,” should be used to answer the rule. To say,
Affirmed.