
    The Board of Commissioners of Allen County v. H. N. Boyd.
    1. Practice; Stipulation of Parties; Presumption. Where an appeal is taken to the district court by a land-owner from the decision of a board of county commissioners in establishing a county road, and on the trial in the district court it is agreed by the parties to waive ail irregularities and defects that might have occurred in locating, establishing and open ing the said road, and it is especially agreed that the only question for the district court to determine is the amount of the damages which the land-owner is entitled to recover by reason of the establishment of the road, held, that it will be presumed that the road was in fact and in law established, and that all prior proceedings were sufficiently regular to give the district court jurisdiction to hear and determine the case.
    2. Error, Not Presumed. Where certain instructions given by the district court to the jury are alleged for error, held, that in the absence of all the evidence the supreme court cannot tell whether such instructions are materially erroneous, or not.
    3. --The supreme court will not review instructions given by the district court, unless the instructions were excepted to at the time.
    
      Error from Allen District Court.
    
    
      ■ The opinion states the case. Judgment for plaintiff Boyd at the November Term, 1882. The defendant Board of Commissioners brings the judgment here for review.
    
      Q. A. Amos, county attorney, for plaintiff in error.
    
      J. H. Richards, for defendant in error.
   The opinion of the court was delivered by

Valentine, J.:

A judgment was rendered in the district court of Allen county, in favor of H. N. Boyd and against the board of county commissioners of said county, for $225, damages alleged to have been sustained by Boyd by reason of the establishment of a county road, laid out, located and established under the authority and direction of such board of county commissioners. The county board now claims that such judgment is erroneous, for the following reasons: first, that said county road was never, in legal contemplation, laid out or established; second, that the district court had no jurisdiction to render such judgment; third, that the court erred in its instructions to the jury; fourth, that the court erred in overruling the motion of plaintiff in error for a new trial; fifth, that the judgment should have been in favor of the plaintiff in error and against the defendant in error, Boyd.

We do not think that any of the alleged errors are available to the plaintiff in error. None of the evidence has been brought to this court, and hence we cannot tell whether the said county road was legally established, or not, or whether the district court had jurisdiction to try the case, or not; but presumptively it had; and we cannot presume that the district court committed error in any particular, unless the error is affirmatively shown. Besides, the parties on the trial waived all irregularities and defects in locating, establishing and opening the said road, and especially agreed that the only question for the district court to determine was the amount of the damages which the plaintiff, .Boyd, was entitled to recover. After this agreement on the part of the parties was entered into, it was not necessary for the plaintiff below, Boyd, to show that the road was legally established, or to show that the prior proceedings were so regular as to give the district court jurisdiction to hear and determine the case. After this agreement, all these things should be presumed against the plaintiff in error, and it has certainly not been shown affirmatively that the road was not legally established, or that the district court did not have jurisdiction to hear and determine the case.

Further, as the evidence has not been brought to this court, we cannot tell whether the instructions complained of were erroneous, or not; or if erroneous, whether they were materially erroneous, or not.

Besides, it does not appear that any exception was taken to any of the instructions; and this court will not review instructions given by the district court to the jury, unless the instructions were excepted to at the time. Neither has it been shown that the court below erred in overruling the motion of plaintiff in error for a new trial, or in rendering judgment in favor of the plaintiff below, and against the plaintiff in error.

The judgment of the court below will be affirmed.

All the Justices concurring.  