Julius Winkelmeyer Brewing Ass'n v. Wolff , 53 Kan. 323 ( 1894 )

The opinion of the court was delivered by

Johnston, J.:

The Julius Winkelmeyer Brewing Association brought an action against M. K. Wolff and John Wolff, to recover $1,806.20 for beer and malt extract sold to the latter, but the amount of the recovery was only $944.20. Not satisfied with the rulings on the trial, or with the amount of recovery, the plaintiff brings the case here for review.

Defendants insist that, on account of the condition of the record, none of the errors assigned are available. It appears from the record that a trial was had on November 16, 1889, and that a motion for a new trial was presented and heard on November 26, 1889. The record fails to show when the motion for a new trial was filed, or even that it was filed at all. The only errors alleged were those committed on the trial, and whether the motion for a new trial was filed within three days after the verdict and judgment is not shown by the record, nor does it appear for what reasons the motion for the new trial was refused. It may have been refused because it was not filed within the required time. tion for a new trial which is overruled, and the reasons for overruling the same are not stated, we must presume, for the purpose of upholding the judgment of the court, that it was not made and filed in due time.” (City of Eskridge v. Lewis, 51 Kas. 376; Deford v. Orvis, 52 id. 432.)

“Where the record is silent as to the time of filing a mo-

The judgment of the district court will be affirmed.

All the Justices concurring.