
    Milton Stetler et al. v. Philip King.
    
      Instbuotions — Defective Record — No Review. Where the instructions given to the jury are complained of, but none of the evidence is brought here, nor any statement as to its purport, but simply that the parties offered evidence and rested, it cannot be held that the court instructed the jury erroneously.
    
      
      Error from Ottawa District Court.
    
    The case is stated in the opinion.
    
      R. F. Thompson, and W. E. Richards, for plaintiffs in error.
    
      G. W. Hurley, and Chipman & Maltby, for defendant in error.
   Opinion by

Holt, C.:

The defendant in error, Philip King, brought his action against defendants, alleging in his petition that he had made a verbal agreement with Milton Stetler to sell and convey to him certain real estate for the sum of $1,600, to be paid in promissory notes, ponies, and $550 in cash; that in accordance with such agreement a deed had been executed by said plaintiff conveying said real estate to Milton Stetler, but that the $550 in cash had not been paid, and asking judgment against him for that sum, and costs. A copy of the deed referred to was attached to and made a part of his petition. It contained a receipt in full for $1,600, as its consideration. The defendant answered, first, by a general denial; and second, “that before the commencement of this action these defendants paid to the plaintiff the full consideration for the said real estate, as set forth in said deed.” The plaintiff replied by a general denial. At the trial at the December term, 1887, the plaintiff recovered a judgment of $536.24 and costs. The court instructed the jury that the burden of proof was upon the defendants. Of this the defendants complain.

The pleadings and instructions are set forth in full, but none of the evidence is preserved in the case-made. The only statement in regard to the testimony is: “ Said action came on for trial before the court and a jury, and the parties appearing offer their evidence, and rest.” Under this statement in the case-made we cannot say there was any error on the part of the court in instructing the jury that the burden of proof rested upon the defendants. It is unnecessary in a case-made to preserve all the testimony, or in fact any part of it, but in its absence there should be some statement showing in some way what its purport was. There was no statement in the case-made that the evidence offered by either party tended to support the allegations of their respective pleadings, but simply that they offered their evidence. It may have been of such a nature that the instructions of the court were correct. In the absence of any showing to the contrary, we are compelled to presume that the proceedings of the court were in every way regular and correct. Error must be shown, and is never presumed.

Under this view of the case, we recommend that the judgment be affirmed.

By the Court: It is so ordered.

All the Justices concurring.  