Campbell v. Mechanics' Savings Bank

71 P. 829, 66 Kan. 778, 1903 Kan. LEXIS 158

• Court: Supreme Court of Kansas
• Decided: March 7, 1903
• Docket: No. 12,790
• Status: Published

Opinion

Per Curiam:

Error is assigned on the ruling setting aside a service by publication. The transcript brought here contains no bill of exceptions, nor anything to show the basis of the ruling. It involved a question of fact, and in the absence of a contrary showing it will be presumed that there was evidence sufficient to sustain the ruling.

To meet this, attention is called to the following recital in the journal entry: “No evidence except the files and records in the case being introduced.” Statements as to the kind of evidence introduced constitute no part of a journal entry, and when incorporated in an entry must be disregarded by this court. (Morrow et al. v. Comm’rs of Saline Co., 21 Kan. 484.) Such matters can only be preserved in a case-made or bill of exceptions. If we should consider the recital, still we could not say that the evidence before the trial court is before us. If it be said that the “records” referred to are necessarily included in the transcript, we still lack those matters of evidence included in the-term “files.” Many papers which do not constitute a part of the record are filed and preserved by the clerk. These files, like affidavits, depositions, and documents, may be received in evidence and yet such evidence does not become a part of the record unless it is preserved as the law requires.

As it does not appear that the transcript contains the evidence upon which the trial court acted, its ruling is not before us for review. The proceedings will therefore be dismissed.