Sherwood v. Smolt ( 1916 )

Mr. Presiding Justice Pam

delivered the opinion of the court.

4. Appeal and ebbob, § 734^*—when affidavits may not be considered on review of decrees on petition to set aside decree in- equity. Affidavits attached to a verified petition to set aside a decree in equity, or affidavits filed after the filing of such petition, cannot be considered on review unless it appears from the record that such affidavits were considered by the court below in passing on the motion to vacate the decree. 5. Appeal and ebbob, § 734*—when record must contain affidavits in support of motion to vacate decree in equity. The fact as to whether the court below, in passing upon a motion to vacate a decree in a suit in equity, considered affidavits filed in support of such motion, or attached to the petition, can only be made to appear by making such affidavits part of the record certified to by the judge who heard the cause. 6. Appeal and ebbob, § 1268*—when action of court in overruling motion to vacate decree presumed correct. On review of a decree in a suit in equity, where there is no certificate to show that any affidavits were considered by the court in overruling a motion to vacate the decree, such action must he presumed to be correct. 7. Appeal and ebbob, § 855*—what certificate of evidence must contain. Affidavits filed in support of or attached to a verified petition for the vacation of a decree in equity are not part -of the record on review unless preserved by a certificate of evidence. 8. Appeal and ebbob, § 855*—what certificate of evidence must contain. A verified petition for the vacation of a decree in equity is in the nature of an affidavit, and is not part of the record on review unless preserved in the certificate of evidence signed by the trial court. 9. Equity, § 56*—when objection by defendant that plea of co-defendant not disposed of without merit. In a bill to enforce an express trust, where there were several defendants, one of whom rested on a plea to the jurisdiction without answering, an objection by another defendant that the plea was not disposed of held without merit. 10. Equity, § 399*—when objection of defendant that codefendant not served without merit. In a hill to enforce an express trust, where there were several defendants, an objection by one of them that another was not served held without merit.