
    No. 973.
    The Chicago and Southeastern Railway Company v. Rader.
    Appellate Court Practice. — Sufficiency of the Evidence. — Issues.— The appellate tribunal can not pass upon the sufficiency of the evidence, where the record does not disclose the questions at issue, the answer not being set out in the record.
    From the Boone Circuit Court.
    
      W. R. Crawford and J. A. Abbott, for appellant.
    
      A. J. Shelby, for appellee.
   Gavin, J.

Appellee recovered judgment on a complaint, in two paragraphs, for stock killed.

The only points made by appellant’s counsel are that the court erred in overruling its motions to modify the judgment, and for a new trial.

The foundation of each motion is that the evidence is not sufficient to sustain the finding upon the second paragraph, because there is not shown, between the Midland Railway Company, by whose engine the injury was inflicted, and the appellant, any such connection as would make the appellant liable for the acts of the Midland company.

Filed Oct. 9, 1894.

To enable us to determine the sufficiency of the evidence, we must be advised as to the questions at issue between the parties. This we can only learn from the pleadings. It is therefore essential that both complaint and answer should be brought into the record. Elliott’s App. Proced., section 198; Sumner v. Goings, 74 Ind. 293; McCardle v. McGinley, 86 Ind. 538.

The record in this case (p. 10, 1. 26) shows that an answer was filed at the proper time, but it was not on file when thé transcript was prepared, and is not, therefore, set out in the record. What this answer was we can not know. It may have admitted the very matter which appellant now claims was not proved.

It is well settled that the presumption in this court is in favor of the correctness of the action of the court below. It is incumbent upon the appellant to overthrow this presumption by bringing to this court a proper record affirmatively showing error, and that this error was at least probably prejudicial. Morningstar v. Musser, 129 Ind. 470; Darnell v. Sallee, 7 Ind. App. 581.

There being no available error, the judgment is affirmed.  