#### Clemma Conger v. B. F. Dodd.

Filed May 1, 1895.

No. 4675.

1. Bill of Exceptions: Defects: Sufficiency of Evidence. If a bill of exceptions discloses that important evidence has been therefrom omitted authentication of the bill to the effect that it contains all the evidence will not control, and in such case the verdict will not he disturbed as contrary to the evidence.

2. Review': Defective Transcript: Instructions. Where error is assigned upon the giving of a certain instruction,'on-the ground that while abstractly correct, it is misleading for want of modifications, the court will not consider- such assignment where it appears that the whole charge is not included in the transcript, because proper modifications may have been given in other instructions.

Error from the district court of Sherman county. Tried below before Church, J.

*J. R. Scott,*for plaintiff in error-.

*Nightingale Bros.*and *Wall & Bradley, contra.*

*37Irvine, C.

Dodd began this suit against Conger in replevin to recover certain chattels. Docfd claimed the property as owner. Defendant below, Mrs. Conger, had taken the property under a chattel mortgage purporting to be executed by Dodd to secure a promissory note for $101.50 purporting to have been executed by Dodd July 11, 1887, and due August 11, 1887. Dodd had judgment in the district court from which Mrs. Conger prosecutes error.

The first assignment of error is that the verdict is not sustained by the evidence. Dodd undoubtedly made out a *prima facie*case of ownership. Mrs. Conger then introduced evidence tending to prove that her husband had procured her to loan Dodd $100; that after the negotiations had been made, and the money advanced, Mr. and Mrs. Dodd and Mr. Conger met at Mr. Conger’s house; that a note and mortgage were there produced by Conger, read over to the Dodds, and Dodd’s signature affixed to both by Mrs. Dodd, Dodd expressly authorizing her and directing her so to do. Dodd, in rebuttal, offered evidence tending to show that when this occurred he was so intoxicated as not to understand what he was doing; that he had been negotiating with Conger for the sale to Conger of his farm; that Conger paid him $100 in cash, taking this note, and agreeing on the maturity of the note to pay him $200 more. Dodd claims that he did not know that he signed or directed to be signed any mortgage, and Mrs. Dodd claims that she was informed the instrument she signed was an agreement for the sale of the farm. It appears quite clearly that Dodd knew of the mortgage not long after its maturity, which was long before the bringing of this action. The evidence is extremely vágue and far from convincing. *We*would have great doubt whether what appears in the bill of exceptions would be sufficient in itself to sustain the verdict; but the bill of exceptions discloses that three *38documents were introduced in evidence: one was the mortgage, one was the note, the third was offered in this language: “Counsel for defendant here offered in evidence an instrument signed by B. F. "Dodd, and marked ‘ Exhibit JBY’ A careful search of the record discloses no evidence tending to show what this instrument was, and no copy of the instrument appears in the bill. In the examination of the witnesses, with reference to the alleged sale of the land, and the transactions at the time the note and mortgage were executed, much reference is made to this Exhibit B. This document may havé been of such a character as to have supplemented the proof in regard to the alleged contract of sale and the fraud alleged to have been practiced upon Dodd and his wife. The certificate that the bill of exceptions contained all the evidence does not prevail against the intrinsic evidence afforded by the bill itself that there was an important omission, and in such case the verdict will not be disturbed as contrary to the evidence. *(Missouri P. R. Co. v. Hays,*15 Neb., 224; *Oberfelder v. Kavanaugh,*29 Neb., 427; *Dawson v. Williams,*37 Neb., 1.)

Several assignments of error relate to the exclusion or admission of evidence, but these assignments, with perhaps one exception, are too indefinite to point out the ruling complained of, and must, therefore, be disregarded. In the one instance referred to the error assigned was in ex-oludiDg testimony. No offer was made to show what it was sought to prove, and the question itself does not show the materiality of the inquiry.

It is assigned as error that the court erred in giving instruction No. 4. Counsel do not argue that this instruction misstated the law, but they contend that it was misleading when not accompanied by any modifying instructions. Instruction No. 4 is, however, the only instruction included in the transcript, and the certificate of the clerk is that the transcript is a true and perfect one “of petition, answer, *39and instruction No. 4, given by the court.” The inference, both from this certificate and from the number of the instruction, is that other instructions were given. Error will not be presumed; and when objection to an instruction is made on the ground stated, we cannot determine that there was error without having the whole charge before us.

Finally, it is assigned that the court erred in overruling' the motion for a new trial, but as the motion referred to states eight grounds for a new trial, this assignment is too indefinite to present a case for review.

Judgment affirmed.