Gerspach et al. v. Barhyte

[No. 2106.] Gerspach et al. v. Barhyte. 1. Appellate Practice — Abstract of Record — Pleading — Sufciency of Complaint. Where a cause was tried upon complaint, answer and replication, an objection to the sufficiency of the complaint will not he considered by tbe appellate court where the abstract of record fails to inform the court as to the contents of the answer and replication, since the defects, if any, in the complaint may have been cured by the subsequent pleading. 2. Appellate Practice — Abstract of Record — Evidence. An objection that the evidence is insufficient to sustain a judgment will not be considered by the appellate court, where the evidence is not abstracted, nor printed in the abstract of record. Appeal from the District Court of Arapahoe County. Messrs. Laws & Freeman, for appellants. Mr. Kichard McKnight, for' appellee. [MAJORITY — .Gunter, J.] .Gunter, J. This case was tried to the court upon complaint, answers, replications and evidence, resulting in a judgment for appellee. It is contended that the complaint failed to state a cause of action. The sufficiency of the complaint herein can be determined only by a knowledge of the answers and replications. If defects exist in the complaint they may have been cured by the subsequent pleadings. We are not informed by the abstract as to the contents. of the answer or replication. Under our practice if counsel desire to question the sufficiency of any pleading such pleading should be in the abstract and other portions of the pleadings sufficient to understand the question urged. This was not done in the present case. For this reason we decline to. consider the question of the sufficiency of the complaint. It is further urged that the evidence is insufficient to sustain the judgment. The evidence should be abstracted to justify our considering this question.—Denver Machinery Co. v. Pub. Co., 4 Colo. App. 146, 35 Pac. 192; Mich. Ins. Co. v. Wich, 8 Colo. App,. 409, 417; 46 Pac. 687; Woods et al. v. Chellew, 15 Colo. App. 368, 62 Pac. 230. The evidence has not been abstracted herein, nor is it presented to us outside of the bill of exceptions. Judgment of the lower court will be affirmed. Affirmed.