Elstan v. Roberts

Decided June 20, 1873

Court of Appeals of Kentucky · decided 1873-06-20

Pleading — Lost Pleading — Substitution—Waiver. Where the court allowed plaintiff to substitute new pleadings for ones which had been lost, defendant waived the error, if any, in allowing the substitution, by failing to make it a ground for a new trial. Appeal — Presumption—Evidence Not in Record. Where the evidence is not in the record the Court of Appeals must presume that it was such as to authorize the finding of the jury.

Decided 1873-06-20

¶1Opinion by

Judge Hardin:

¶2We perceive no substantial or available error in the action of the court in causing new pleadings- to be substituted for the original ones which were lost; but if in this action of the court there was any error, the defendant waived it by failing to make it a ground for a new trial.

¶3The evidence adduced on the trial not being in the record, we must presume it was such as to authorize the finding of the jury, and we cannot say that the verdict is excessive, or not sustained by sufficient -evidence.

¶4The judgment is affirmed.