Hall v. Needles , 1 Indian Terr. 146 ( 1897 )

Lewis, J.

(after stating the facts.) 1. It is urged íat the trial court erred in setting aside the judgment rend-ced in the case in October, 1891, and in reinstating the tse upon the docket for trial. The proceeding to set aside las begun within three years after the rendition of the pgment, was authorized by section 5155, Mansf. Dig., lich was in force in the jurisdiction, and was conducted in bnformity with law. To the action of the trial court in Jtting aside the judgment no exception was reserved. No ation was made before the adjournment of court at that cm, questioning the correctness of its action in any par-bular. The case was, after reinstatement, continued to (.other term- by agreement of parties. At the trial term, Ipellee, by leave, filed an amended complaint, upon which joined issue. In the motion for new trial filed by him to aside the judgment then rendered the action of the court in setting aside the first judgment was not. in any way suggested as error. In this state of the record, we think the correctness of the court’s action under the evidence in setting the first judgment is not open to review us. Elliott, App. Proc, art. 784; 2 Thomp. Trials, art. 2712; Joyner vs Hall, 36 Ark. 513.

Opening statement.

2. Exception was taken to the remarks of counsel for appellee in his opening statement to the jury. The statement is lengthy, and contains the allegation of several distinct matters. The exception does not point out the specific matter complained of, and might be disposed of upon the ground that it is too general to require consideration. Gowen vs Bush (May term, 1896) 76 Fed. 349. In| addition, the remarks were with reference to a plea of rei adjudicata, which stood as one of the defenses to the action,¡ though it appears, from the absence of testimony upon thi issue, that it was abandoned. The opening statement must of necessity, be left largely to the professional responsibil ity of counsel and to the discretion of the trial court. It i; a statement of the issues, and of what counsel expect td prove in support of them, and, if a matter stated be perti nent to an issue raised by the pleadings, the court canno exclude it, nor can its action be questioned, because counsel subsequently fail to support the statement by offer of proof The objection urged is not well taken. 1 Thomp. Trials| arts, 261-266.

3. Two issues of fact, counsel concede, are raised bj the proof: First. Was either of the mortgagors, at thl time of the execution of the mortgage, a resident of thl Indian Territory ? Second. Were the cattle in appellant'] possession prior to their seizure under attachment? Th| court submitted these issues to the jury. In the manner submitting them the court probably furnished valid ground of complaint by appellant, as it may also have done by rl fusing to submit charges requested by him; but the court’s charge contained several propositions, some of which were correct. The request for instructions contained more than one proposition. The exception reserved is as follows: “Plaintiff excepts to all the instructions given by the court, and to the refusal of the instructions asked.” It is so well settled as not to require more than the citation of authorities, that this exception is too general to present for review ;he action of the court in giving or refusing instructions, if my part of the charge given be correct. McClellan vs Pyeatt, 4 U. S. App. 319, 1 C. C. A. 613, and 50 Fed. 686; Beaver vs Taylor, 93 U. S. 46; Lincoln vs Claflin, 7 Wall. 32; Cooper vs Schlesinger, 111 U. S. 148, 4 Sup. Ct. 360; Burton vs Ferry Co. 114 U. S. 474, 5 Sup. Ct. 960; Railroad Co. vs Spencer, 18 C. C. A. 114, 71 Fed. 93.

Instruction. Exception.

4. It is insisted that the proof shows that Lane was a esident of the Indian Territory at the time of the execution f the mortgage, and that, therefore, the judgment is unsup-iorted by the evidence. To sustain this position, we are ited to the case of Krone vs Cooper, 43 Ark. 547. While pproving the reasoning and the conclusions announced in íat decision', we are of opinion that the evidence in this case tises an issue upon the question of Lane’s residence in the irritory at the time the mortgage was given, and that the erdict of the jury cannot be held to be without support in le testimony. It is further contended that the undisputed roof shows that appellant was in possession of the cattle in mtroversy before the attachment was levied. To deter-ine this contention, we have thoroughly considered the-■cord, and, we are compelled to say, without aid therefrom, e testimony was adduced with so little regard to clearness logical sequence, questions and answers are so confusing id inconsistent as to different bunches of cattle in different istures at different times, that a reasonable conclusion up- . the question under consideration cannot be had. The burden is upon the appellant, who alleges error, to show it affirmatively. We cannot say that he has done so upon this recor^ as presented to us. It may be further observed that the bill of exceptions does not recite, or show indirectly, that it contains all the testimony. In the absence of such showing, we would be compelled to presume that evidence was introduced which was sufficient to support the verdict. McBee vs Bank, 37 S. W. 55; Ballard vs Noaks, 2 Ark. 45; Railway Co. vs Amos, 54 Ark. 159, 15 S. W. 362; McKinney vs Demby, 44 Ark. 74. The judgment is affirmed.

Presumption ve?diccort ■ . Springer, C. J., concurs.