Kykendall v. Clinton , 3 Kan. 85 ( 1864 )

By the Court,

Kingman, J.

This cause having been taken up from the decision of a justice’s court on error to the District Court, and having been there affirmed, presents itself to this court as seeking only to review the decision of the District Court.

The record shows no ruling of the justice, and no exceptions are filed except to the overruling the motion for a new trial.

The motion for a new trial was on the ground that the decision was obtained by fraud, partiality and undue means, and seems to have been supported by affidavits, but as they are not in the record we are not able to say that the justice erred in refusing a new trial. In the absence of the facts we are to presume that the decision was correct.

The District Court could, not with propriety attempt to review on error the rulings or decisions of the justice to which no exceptions had. been taken, and we can go no farther than the District Court.

The record discloses one of the alleged errors, which possibly, we may be authorized to examine.

The action was one of forcible entry and detainer, the complaint was based upon affidavit, and it may be that the law is, as urged, that a defective affidavit would be an error as fundamentally fatal in its character as a petition that does not state a sufficient cause of action. Without deciding whether this be so or not we will examine the alleged defect, -which is a want of sufficient description of the property, the possession of which was sought to be recovered in the action.

The description is as follows:

“ The hotel commonly called the Clinton House, in Indianola, Shawnee count}1-, together with all the rooms, houses, garden, lots, &c., used in connection with the same.”

For aught that we can know the description may have been perfect and accurate. Certain property in Indianola would be as likely to be known as belonging to the Clinton House, as the horrse itself, by that designation. Such a description would be good in a deed provided the property could be ascertained that was conveyed, and whether it could be so ascertained would be a question of fact and not of law.

The decision of the District Court is affirmed.

All the justices concurring.