Christy's Administrator v. Myers

| Mo. | Mar 15, 1855

Ryland , Judge,

delivered the opinion of the court.

This case presents no question worthy of the consideration of this court. Were we to consider all the motions and affidavits which the clerk has thought proper to copy into' the transcript, as part of the record of this case, it would only present then the mere question of discretionary action on the part of the court below. We cannot see, in this case, an abuse of this discretion, calling for the action of this court for its correction. The matter of setting aside a judgment by default, upon the application of the attorney, for the failure to file an answer for his client, is so peculiarly within the discretion of the court, that this court must see an abuse clearly of this power, before we will reverse. But it is needless to say any thing further on this subject. There is no bill of exceptions in this transcript showing that any thing was excepted to, or any objection taken and saved below. “It is an invariable presumption of this court, that the proceedings of inferior courts are correct unless the contrary appears. He who seeks to reverse them, must put his finger on the error committed by them. Although a motion is set out by a clerk in the record, that does not make it a part of the record. A motion is no part of the record, and it can only be made so by incorporating it into a bill of exceptions.” ( United States v. Gamble & Bates, 10 Mo. Rep. 459.)

The judgment below is affirmed; the other judges concurring.