193 P.2d 216 | Kan. | 1948
The opinion of the court was delivered by
The appellants, resident taxpayers in the city of Abilene, sought to enjoin the operation of an alfalfa dehydrating mill within the city. The defendant prevailed and the plaintiffs appeal.
In view of the disposition that must be made of the appeal, a brief narrative will suffice. The appellants sought either a mandatory injunction to require the defendant to adopt measures that would abate the alleged nuisance, or if that could not be done that
Neither appellants’ abstract nor the counter abstract contain the notice of appeal. But copy of such notice, forwarded by the clerk of the district court together with the journal entry of judgment, discloses that the appeal is solely from an order overruling plaintiffs’ motion for a new trial, entered according to the recital in the notice on September 8, 1947. There was no appeal from the judgment. It follows that review could only be had of the order overruling the motion.
We do not doubt the accuracy of the recital in the appeal notice, filed by the capable and reputable attorney for appellants, that there was a ruling upon such a motion. But we are limited to the record before us which is wholly silent on the subject.
Review of trial errors cannot be had unless they have been called to the attention of the trial court upon motion for a new trial. (Brown v. Brown, 146 Kan. 7, 10, 68 P. 2d 1105, and cases there cited; Hamilton v. Binger, 162 Kan. 415, 176 P. 2d 553, and cases, p. 419; Liston v. Rice, 162 Kan. 644, 645, 179 P. 2d 179.) Having
Under the situation stated, the only course open is to dismiss the appeal. It is so ordered.