166 Ky. 446 | Ky. Ct. App. | 1915
Opinion op the Court by
Affirming.
This was a suit byS. L. Kerr, committee of W. L. Graves, an imbecile, against W. L. Graves, Ms wife, Florence Ragsdale Graves, and W. C. Lyons, a creditor of the Graves. The action was instituted for the sale of certain real estate, which was owned by W. L. Graves, to pay his indebtedness. A guardian ad litem was appointed 'to defend the action for W. L. Graves, and he filed a report, in which he alleged that he could make no affirmative defense for him. An order was entered in the case, referring
The appellee has entered a motion in this court to strike the purported transcript of the evidence from the record, upon the ground that it was never filed in court, and there is no order of court showing the examination or approval of it by the court or making it a part of the record, and it was signed by the judge out of term time. A further motion was made to dismiss the appeal of Florence Ragsdale Graves, and both of these motions were ordered to be passed to the merits of the case.
As to the second of the motions, there are bút two ways in which an appeal may come to this court from an inferior jurisdiction where the amount in controversy, is, as in this case. The court, from the judgment of which the appeal is taken, may grant the appeal as a matter of right to the one asking it, or the appeal may be granted by the clerk of this court. Florence Ragsdale Graves did not file exceptions to the report of sale, neither did she except to the judgment of the court overruling the exceptions, nor did she pray nor was she granted an appeal from the judgment. She has not secured an appeal
The motion to strike from the record the bill of evidence must, also, be sustained. "Where in a proceeding in equity, oral testimony is given and heard and a party desires the benefit of it upen an appeal it must be made a part of the record by a bill of exceptions, which must be prepared within the same time and in the same manner as a bill of exceptions is required to be prepared in actions in ordinary. Shannon v. Stratton, 144 Ky., 26; Knecht v. Home Telephone Co., 121 Ky., 492; Dupoyster v. Fort Jefferson Imp. Co., 121 Ky., 518. A bill of exceptions must, always, be made a part of the record, by an order of the court. The bill must be prepared and presented to the judge of the court for his approval and signature, during the term of court at which the judgment becomes final, unless further time for its preparation is-given by an order of the court. Civil Code, section 337,. sub-section 2. It was never intended that the stenographer’s bill of evidence should supply the place of and dispense with the necessity of a bill of exceptions filed by an order of court. The bill of evidence in the case,, at bar, which seems to have been prepared by the official stenographer, and approved' by the judge might be treated, by agreement, no doubt, as a sufficient bill of exceptions in this case, but there is no order of court showing its approval or the filing of it or making it any part of the record, or whether it was prepared or presented during the time required by law. A good reason for the requirement, that a bill of exceptions or bill of evidence, before becoming a part of the record, must be approved and signed by the judge and filed by an order of court, is that parties to a suit are presumed to know and: take cognizance of what is done by orders of the court, in the conduct of a case, and if the bill is filed and made a part of the record by an order of court, the parties may have opportunity to examine it and secure the correction of any errors in it, and the addition to it of anything which may have been omitted from it by oversight or otherwise: If the bill could be made a part of the record
There being no evidence in the record, the only thing to be considered is whether the pleadings and proceedings in the case are sufficient to support the action of the court in rendering the judgment appealed from. McAllister v. Insurance Co., 78 Ky., 531, 80 Ky., 176; Owensboro Ry. Co. v. Barker, 15 R., 175; Martin v. Richardson, 14 R., 847; C. O. & S. W. R. R. Co., Rec’rs v. Smith, 19 R., 1826. The pleadings and other proceedings seem to fully support the judgment. Where exceptions to a judicial sale are heard upon evidence, and the evidence does not accompany the record, the questions raised will not be considered. Creatz v. Knecht, 9 R., 772.
The contention, that in the absence of the evidence heard by the circuit court, the exceptions to the report of sale must be held good, and the judgment overruling the exceptions reversed, because there was no denial of the truth of the allegations made in the exceptions by a written (pleading, we do not think is tenable. The rules of practice, in courts of equity, have never required a written traverse or confession and avoidance of the things set up in exceptions to the confirmation of a report of sale. The immemorial practice has been to put 'upon the one excepting, the burden of the proof of his allegations, without further pleading, and in the absence of proof supporting his contention, the exceptionsi must be overruled.
The judgment appealed from is, therefore, affirmed.