delivered the opinion of the court.
Herman and Jennie Zalinsky are husband and wife and William Zall is their son. In 1907, defendant in error, Stoddard, obtained a judgment, in the County Court, against Herman Zalinsky. In 1917, execution was issued on this judgment and returned unsatisfied, and such further proceedings had that the other plaintiffs in error were brought into this action as parties, under the contention that certain stock of the company, standing in the name of the wife and son, was in fact the property of the husband. Herman Zalinsky meanwhile, on his voluntary petition, was declared a bankrupt, the Stoddard judgment being scheduled as his sole debt. Defendant in error, McLean, was appointed trustee. On the trial a verdict was directed for plaintiffs in error. An appeal was taken to the District Court and the trial there resulted in a verdict for defendants in error. Thereupon judgment was entered decreeing 9,997 shares of said stock, standing in the name óf Jennie Zalinsky and William Zall, to be the property of Herman Zalinsky, and subjecting the same to
Among the numerous questions argued in the briefs of counsel are: The regularity of the proceedings by which Jennie Zalinsky, William Zall and The Zall Jewelry Company, were brought into the cause, and those by which McLean appeared as a plaintiff in the County Court and an intervenor in the District Court: The amendment of an appeal bond: The correctness of the instructions: And the sufficiency of the evidence. Further details concerning these matters are however unnecessary by reason of the condition of this record as hereinafter set forth.
Burke, J., after stating the case as above.
The bill of exceptions contains 450 pages and is not indexed, and the number of folios, including numerous exhibits thereto attached, is 1210. It is apparent that as originally prepared and certified, no instructions were contained therein, and none are mentioned in the certificate. .Thereafter duplicate folios 1055 to 1114, and 28 additional pages, without folio numbers, all relating to instructions, were inserted just preceding the certificate. No discoverable order is followed in making up the record proper.
The original abstract of record, so-called, contains 72 pages.. It is in no proper sense of the term such an abstract, but rather a collection of desultory comments on the proceedings in the District Court, such as,' “Counsel were then permitted to inquire as to the age of the boy, and inquiries along that line to some considerable extent.” The folios of this document are so badly mixed as to be worse than useless. The same may be said of its purported index.
The assignment contains 22 paragraphs calling our attention to that number of alleged errors of the trial court. Numbers 1, 2, 3, 19 and 20 are incomprehensible. Number 3, which is a fair example of these, reads: “The court erred in overruling the motion to quash the summons issued to make any person a party to a summons in garnishment that had already been served and answered.” Each of the
The sufficiency of the evidence to support the verdict is not covered by any assignment of error, hence a supplemental abstract of 147 pages filed by defendants in error was entirely unecessary. “Plaintiff in error shall * * * file with the clerk * * * an abstract of the record. Such abstract shall contain a brief, statement of the contents of the pleadings, the judgment, the assignments of error relied on, and such other parts of the record as may be essential; * * * The abstract shall be indexed and the folio numbers of the record shown on the margin thereof.” Rule 34 of the Rules of this Court. “Plaintiff^ in error shall assign errors in writing at the timé of filing the record and each error shall be separately alleged and particularly specified.” Rule 30 of the Rules of this Court. “If the plaintiff in error shall fail to assign error, the writ of error shall be dismissed.” Rule '31 of the Rules of this Court. “An exception in the lower court to an instruction is essential to a consideration of alleged error therein; such exception should appear in the abstract.” Auckland et al v. Lawrence,
An assignment of error based upon a document not appearing in the abstract will not be considered. Merriner v. Jeppson et al,
Where the portion of a pleading said to be defective is not set out in the abstract and error is not assigned to the ruling of the court thereon, the point will not be considered. Michael v. Mills,
Objections and exceptions to the admission or exclusion of testimony must appear in the abstract. A statement thereof in the assignment of errors and reference to the bill of exceptions are insufficient. McPhee & McGinnity v. Fowler,
The same rule applies where the abstract does not disclose an objection made and exception saved to the alleged erroneous ruling. “We are not obliged to search through the record to find that which it is clearly the duty of counsel to point out and print in his abstract.” Thompson v. D. D. & R. Co.,
When it is impossible to obtain from the abstract of record a comprehensive idea of the case the court may decline to consider it. McFaddin v. Bice,
It will thus be observed that as to each of the alleged errors of the trial court, discussed in the briefs of counsel, either the bill of exceptions, the abstract of record, or the assignment of errors is so defective as to preclude the consideration thereof by this court. This conclusion we announce with less reluctance because our examination of the bill of exceptions convinces us that substantial justice was done by the judgment below. The writ is accordingly dismissed and the judgment affirmed.
Garrigues, C. J., and Scott, J., concur.