This is the second appearance of the case sub judice before this Court. See
Hartford Ins. Co. v. Henderson & Son,
The notice of appeal directs that: “Inasmuch as the record is already in the Court of Appeals, the clerk will omit all except the following, which will be transmitted.
“1. Hartford’s Motion for Summary Judgment filed October 19, 1988.
“2. The response to Hartford’s Motion filed by Transport Indemnity Company and Lee Way Motor Freight, Inc. on November 18, 1988.
“3. The order granting Hartford’s Motion for Summary Judgment filed June 5, 1990.”
The clerk of the state court complied with the designation of record contained in the appellants’ notice of appeal. Thus, the record, upon which our consideration of the present appeal must be made, consists of the record from the earlier appeal plus the subsequent items designated by appellants.
Upon reading the state court’s order granting Hartford Insurance Company’s motion for summary judgment, it is apparent that additional evidence was added to the record upon the remand of the case to the state court, including at least the endorsement to the insurance policy, BMC Form 32, which although not part of the record on the previous appeal was argued before the Supreme Court.
Hartford Ins. Co. v. Henderson & Son,
It is well established that the burden is on the party alleging error to show it affirmatively by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, the appellate court must assume that the judgment below was correct and affirm.
Brown v. Frachiseur,
Judgment affirmed.
