Bartlett v. Feeney , 11 Kan. 593 ( 1873 )

The opinion of the court was delivered by

Valentine, J.:

In this action Mary Feeney recovered a judgment against the defendants below, plaintiffs in error, for the undivided one-sixth part of certain real estate situated in Wyandotte county. The record brought to this court is very informal, and shows but very imperfectly the various rulings of the court below. Several errors may have been committed; and the plaintiffs in error make fourteen assignments therefor, yet not one error is shown by the record brought to this court.

I. As the record does not purport to contain all the evidence introduced in the trial below, we cannot tell whether the findings and judgment of the court below are sustained by sufficient evidence or not.

II. For the same reason we cannot tell whether the court below erred in permitting a certified copy of a certain deed to be read in evidence by the plaintiff below, as there may have been ample evidence introduced to show that the original was lost, or destroyed, or not belonging to or under the control of the plaintiff below. (Laws of 1855, p. 182, §46; Laws of 1859, p. 291, §25; Comp. Laws of 1862, p. 356, §25; Gen. Stat. of 1868, p. 188, § 27; Laws of 1870, p. 174, § 11; 1 Greenl. Ev., §§ 558,349.) This deed purports to have been recorded November 20th 1858, in Leavenworth county. At that time this portion of Wyandotte county formed a part of Leavenworth county. (Laws of 1855, p. 209, § 27; Laws of 1859, p. 362, et seq.)

III. A sheriff’s deed is prima facie valid, and is of itself prima facie evidence of the validity of everything preceding it, necessary for its own validity. (Shields v. Miller, 9 Kas., 390.) And unless it be shown affirmatively that the court had no jurisdiction to render the judgment upon which such a deed is founded, it will be presumed that the court had jurisdiction. In the present case it seems to be admitted that the sheriff’s deed in controversy was and is valid upon its face; that it showed upon its face everything necessary to be shown, and there was certainly nothing outside the sheriff’s deed that tended to show that the court had no jurisdiction to render the judgment upon which said sheriff’s deed was founded. Indeed, the evidence brought to this court tends very strongly to show that the court had such jurisdiction. Besides, the plaintiffs in 'error have not chosen to bring all the evidence to this court; and that not brought may have amply shown jurisdiction. Said sheriff’s deed is also prima faoie evidence that the transcript from the justice’s judgment was properly filed in the office of the clerk of the district court.

IV. The defendants introduced some evidence tending to invalidate said sheriff’s deed, but how much or how little evidence was introduced on the other side to sustain said sheriff’s deed is not shown. Therefore the points attempted to be made against said sheriff’s deed, and founded upon said evidence, are not in this case. As, the defendants below have not chosen to bring all the evidence to this court it will be presumed against them that there was sufficient evidence to sustain the deed, and to sustain the findings, and the judgment of the court thereon. Eor instance, it appears in one of the executions introduced in evidence by the defendant that the shei’iff in making his return, and in describing his levy used the word “southwest,” instead of the word “northwest,” thereby seeming to make a slight difference in the boundary of the land intended to be levied upon. But as the sheriff and the clerk in every other place used the proper word, it would seem that the sheriff used said word through mistake, and against the real facts in the case. It may have been shown on the trial that the sheriff levied upon the proper land, and that he simply used said Avord through mistake; and it may be that the sheriff Avas then and there allowed to amend his return in accordance Avith the facts.

V. It is not shoAvn that the court below erred in permitting the plaintiff below to read in evidence the notice of the sheriff’s sale as published in the “ Weekly Western Argus.” Such evidence would have been competent and proper if the proper preliminary evidence had been introduced, and there is nothing in the record showing that the proper preliminary evidence was not introduced. It is not necessary to notice any of the other points in detail. But we would say generally, as we have said in many other cases, error is never presumed; it must always be shown; and if it is not affirmatively shown, it will be presumed that no error has been committed; and it can only be shown by the record of the proceedings of the court below.

VI. Where a judgment was rendered, as in this case, December 13th 1869, and leaye given to make a case for the supreme court within twenty days thereafter, and where such case was not made until more than twenty days thereafter, and not until after the term of office of the judge who tried the cause had expired, and was then signed and settled by such judge, the statement of á fact which was- not inserted in said case made, nor entered in the proceedings of the court, but which was merely certified to by said ex-judge at the time of making said case, will not be considered by the supreme court. See the following statutory provisions for making a case; Civil code, §§ 544 to 549; Laws of 1870, ch. 85. The judgment of the court below is affirmed.

All the Justices concurring.