Guilford Dudley et al. v. Annie C. Barney

Kansas Court of Appeals1896-09-09No. No. 117

4 Kan. App. 122

Summary · law.co

Holding. The judgment of the trial court is affirmed because the appellants failed to affirmatively show in the record that the motion for a new trial was filed during the term in which the verdict was rendered, and without such showing, the court presumed the motion was properly overruled as untimely.

The court addressed a procedural challenge at the outset of this appeal regarding whether the trial court properly overruled a motion for a new trial. Under the applicable statute, such motions must be filed during the term in which the verdict is rendered and, except in cases of newly-discovered evidence, within three days of the verdict. The record showed a verdict rendered on November 8, 1890, and a motion filed on November 11, 1890, but did not affirmatively establish that the motion was filed during the September term of court. The court concluded that without clear evidence in the record establishing the motion was timely filed during the correct term, it would presume the trial court properly overruled it.

The court rejected the appellants' request that it take judicial notice of the term's duration to support their position, finding that appellate courts assist the lower court's ruling through judicial notice and presumption, not to overcome it. While courts may take judicial notice of when court terms begin, the authorities do not support taking notice of when they end. The court emphasized the established principle that error must be affirmatively shown in the record rather than presumed, and that failure to demonstrate error means none will be assumed to have occurred.

Beyond this threshold issue, the court independently reviewed the record against the assignments of error raised and found no reversible error warranting reversal.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Timeliness of motion for new trial under statutory requirements
Whether appellate courts may take judicial notice of court term duration
Burden of proving error affirmatively in the appellate record
Scope of judicial notice and presumptions in appellate review

Procedural posture

Appellants appealed from a trial court judgment that overruled their motion for a new trial, challenging the procedural dismissal of their motion and raising assignments of error regarding the trial itself.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

The opinion of the court was delivered by

Gilkeson, P. J.:

At the threshold of our examination we are met with an objection to a review of the errors alleged in this action, for the reason that “the record does not affirmatively show that the motion for a new trial was filed at the term the verdict was rendered, and for this reason it must be presumed that the motion was overruled because not filed in time.” Paragraph 4403, General Statutes of 1889, (§ 308, Code,) provides:

“ The application for a new trial must be made at the term the verdict, report or decision is rendered; and, except for the cause of newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.”

As we understand this section, the application for a new trial must be made during the term at which the verdict was rendered, and must, except for the one cause of “ newly.-discovered evidence,” be made within three days. In case of “newly-discovered evidence,” if “unavoidably prevented,” it can be made after the expiration of the three clays, but not beyond the term. This seems to be in harmony with the decisions of the supreme court of this state construing this section; (Earls v. Earls, 27 Kan. 538 ; Mercer v. Ringer, 40 id. 189 ; Powers v. McCue, 48 id. 477 ; Glass Co. v. Bailey, 51 id. 192) ; and it seems to be the construction the plaintiff in error gives to it. The record shows a verdict rendered November 8, 1890; motion for new trial filed November 11, 1890, and nothing further done until July 17, 1891. So, unless this court can take judicial notice of the duration of the September term, 1890, of the district court of Shawnee county, the record not showing that the motion was filed “ during the term at which the verdict was rendered,” it will be presumed, for the purpose of upholding the judgment of the court below and the ruling upon the motion for a new trial, that the motion was not made in time, and that therefore the court did not err in overruling it, and that all errors occurring during the trial were waived. (Hover v. Tenney, 27 Kan. 133; Lucas v. Sturr, 21 id. 480.) The plaintiffs in error concede this, but invoke judicial knowledge and appellate presumption to aid the record. We think the rule is the other way; judicial knowledge and appellate presumption are indulged only in aid of the ruling of the court below, not to overthrow it.

We agree with plaintiffs in error that - this court will take judicial notice of the commencement of the terms of court, but we have been unable to find any authority to the effect that an appellate court will take judicial notice of the duration of the term of the court below; but, on the contrary, the authorities are the other way. The supreme court cannot take judicial notice of the length of a term of the court of common pleas. (Kent v. Bierce, 6 Ohio, 336). And it is cer tainly well settled in this state that error is never presumed; it must always be shown; and if not affirmatively shown, it will be presumed that none was committed.

Aside from the objection made by the defendant in error, we have carefully examined the record in this case, under the assignments of error presented and urged, and fail to discover any reversible error therein.

The judgment of the court below will therefore be affirmed.

All the Judges concurring.