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1 Colo. 74

Kinnear v. Tucker

Supreme Court of Colorado

Decided July 15, 1867

Supreme Court of Colorado · decided 1867-07-15

Dependants in error sued Strope in the district court of Jefferson county, and declared specially upon a failure to return certain cattle, and added the common counts. Upon the trial below, Strope offered in evidence certain orders and receipts for cattle, signed by one or both of the defendants in error. The evidence given on behalf of defendants in error in the court below was not embodied in the bill of exceptions.

Relies on Ballance v. Leonard

Decided 1867-07-15

Hallett, C. J.

¶1We are asked to reverse this judgment because the district court improperly excluded from the jury certain evidence offered by the defendant in that court. There is nothing in the bill of exceptions, except the evidence, which was offered and rejected.

¶2As all the evidence given upon the trial below is not before us, we are unable to say whether the evidence contained in the bill of exceptions was properly excluded. It must be shown affirmatively that the court below erred; we cannot presume it. Ballance v. Leonard, 37 Ill. 43.

¶3The judgment of the district court is affirmed, with costs.

¶4Affirmed.

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