Christ v. Missouri Pacific Railroad, 36 Mo. App. 663

Christ v. Missouri Pacific Railroad

36 Mo. App. 663 | Kan. Ct. App. | 1889

Smith, P. J.

— As there was no bill of exceptions filed in this case our examination must be confined to the record proper. The several questions which the defendant has discussed in its brief do not arise on the record before us, and therefore can not be considered.

The defendant’s answer to the interrogatories admitted an indebtedness, and then separately and distinctly pleaded facts from which the law would conclude non-liability to the process of garnishment.

The grounds of the defendant’s non-liability so set forth are controverted by the denial of the plaintiff and *665thus were presented the issues of fact in the proceeding. The judgment of the court on these issues of fact recites that “ a trial by jury is waived, and the issues between the plaintiff and defendant garnishee are submitted to the court and the evidence heard, and the court finds the garnishee is indebted, etc., and it is therefore considered that plaintiff have and recover of the defendant,” etc. Under these circumstances all the presumptions are in favor of the correctness of the findings of the court upon the questions of fact involved and upon which the judgment is based. Rocthlisberger v. Caspari, 12 Mo. App. 514; O'Neal v. St. Louis, 8 Mo. App. 416; Huxley v. Harrold, 62 Mo. 516; Wenich v. Thompson, 53 Mo. 191.

In the absence of a bill of exceptions showing that there was no evidence adduced to sustain the plaintiff’s denial and thus to meet and overcome the prima fade case made by the answer we must presume there was such evidence.

It sufficiently appears by the pleadings that the debtor was a resident of this state and even if that was one of the issues of fact it was so found by the court from the evidence, and hence there is nothing appearing in the record upon which the jurisdiction of the court could be called in question by us.

The judgment of the circuit court is affirmed.

Ellison, J., concurs ; G-ill, J., not sitting.