2 Indian Terr. 312 | Ct. App. Ind. Terr. | 1899
The only error assigned by the appellant in his brief in this case is as follows: “The court erred in sustaining appellee’s motion to dismiss and in dismissing appellant’s complaints.” We are confronted with the preliminary inquiry whether the record in this, cause is presented to us in such a way as to enable us to review the action of the trial court in sustaining the motions to dismiss of the Missouri, Kansas & Texas Railway Company and of H. C: Rouse, as receiver de. bonis non, of the Missouri, Kansas & Texas Railway Company, and in dismissing the original
“Collateral motions, such as motions to make more specific, to separate, and the like, must be brought into the record by a bill of exceptions, or by a special order of the court making them a part of the record. To this class of motions belong motions to dismiss.” Elliott, App. Proc. p. 766, § 814.
“Rulings upon motions are not deemed to be saved for review in an appellate court, unless the motion and rulings are exhibited in bill of exceptions. It is not sufficient that the clerk of the trial court has inserted in the transcript what purports to be a copy of the motion. The rule applies to motions which are dispositive of the proceedings, — such as motions to dismiss the appeal by which the cause has been brought from an inferior jurisdiction, or a motion in the court to which the cause has been taken by a change of venue to dismiss the cause; and the rule applies in criminal as well as civil cases.'’ 2 Thomp. Trials, pp. 2107, 2108, § 2775.
“The clerk has copied into the transcript an entry showing that a motion was made to strike out apart of the amended complaint, aud the same was sustained. Said motion and the rulings of the court thereon are not made a part of the -record by a bill of exceptions, and it has been uniformly held by this court that such motions and the rulings of the court thereon form no part of the record unless
“The record failing to set out any evidence whatever in support of the motion [motion to dismiss], the presumption is in favor of the court below.” Hickey vs Smith, 6 Ark. 456. See, also, Montgomery vs Carpenter, 5 Pike, 264; Cox vs Garvin, 6 Ark. 431; Dow vs U. S., 27 C. C. A. 42, 81 Fed. 1004.
“Did the court err in refusing to dismiss the suit on the motion of the defendant below? To enable this court to revise the judgment given upon this motion, all of the testimony before the court on the hearing of the motion should have been made of record in the case by a bill of exceptions or otherwise; or, if there was no testimony adduced, this fact should be made to appear, so as to avoid the effect of the presumption of law always indulged in in such cases where the adjudication must of necessity have depended upon facts to be established by testimony.” McQuaid vs Tait, 5 Pike, 309.
We are therefore of the opinion that, the motion to dismiss and the rulings of the court thereon not having been preserved by a bill of exceptions, and no motion for a new trial having been filed or passed upon by the court, we are unable to review the judgment of the lower court dismissing the complaints of the appellant, and, in the absence of a bill of exceptions and motion for a new trial, the presumption is that the judgment of the lower court was correct. If these motions had been properly brought up on the record, and we could consider them, as well as the rulings of the court