Altschiel v. Smith

9 Kan. 90

• Court: Supreme Court of Kansas
• Decided: January 15, 1872
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

The plaintiff in error applied for a temporary injunction to the judge of the district court of Marshall county, restraining defendants from issuing bonds. The application was refused. This refusal he seeks by this action to have reversed. The bill of exceptions shows that the-application was made on petition and affidavits, but does not set out or include the affidavits. Hence we are not informed upon what the district judge acted. True, there are some copies of affidavits in the transcript, and the certificate of the-clerk shows that they were on file the day after the decision.But it was decided in the case of Backus v. Clark, 1 Kas., 303, that “affidavits on a motion in the court below, to-become a part of the record so as to be reviewable by the supreme court, must be included in the bill of exceptions.” See that authority, and cases cited therein. As all presumptions are in favor of the correctness of the decision of the-judge of the district court, and we are not placed in possession of the testimony upon which he acted, we have no other' alternative than to affirm the decision.

All the Justices concurring.