Smith v. Berry

176 S.W. 17, 164 Ky. 621, 1915 Ky. LEXIS 423

• Court: Court of Appeals of Kentucky
• Decided: May 12, 1915
• Status: Published

Opinion

Opinion op the Court by

William Rogers Clay, Commissioner

Affirming.

After filing with the clerk of this court copies of the-original judgment and of certain orders permitting the filing of certain amended pleadings, appellant moved for a subpoena duces tecum requiring the clerk of the trial court to transmit the original record. He also moved for a subpoena duces tecum requiring the clerk to transmit to this court certain original exhibits filed with the pleadings or offered in evidence. The first motion was overruled, but the latter motion was sustained. The record before us contains neither the pleadings nor the evidence heard below, with the exception of the original exhibits referred to. In such a case there is nothing for this court to review. It will be conclusively presumed that the omitted portions of the record support the judgment, and the judgment will be affirmed. Terrell v. Rowland, 86 Ky., 67, 4 S. W., 825, 9 Ky. Law Rep., 258; Courier-Journal Job Printing Co. v. Cardoza, etc., 54 S. W., 966, 21 Ky. Law Rep., 1259; McKee v. Stein’s Guardian, 91 Ky., 240, 16 S. W., 583, 13 Ky. Law Rep., 49; Lilly v. Francis, 137 Ky., 385, 125 S. W., 1050.

Judgment affirmed.