Davis v. Cannady ( 1887 )

Opinion by

Clogston, C.:

The record in this case shows only the petition, affidavits and exhibits attached thereto, and the judgment thereon. This judgment shows that a hearing was had before the court. What evidence was given at that hearing the record does not disclose. It may have been submitted upon the petition and the affidavits attached thereto; but the record does not so show. The court found that the judgment was void, for the reason that it was rendered in vacation. The circumstances under which this judgment was rendered in vacation are not shown. If the evidence had been preserved and brought up with this record, then we might know something more of its history. There must have been some reason or circumstance under which this judgment was rendered in vacation by the court. As to why the report was confirmed and this judgment rendered, is all left to conjecture. Section 591 of the code is as follows: “In other actions the court may award and tax costs, and apportion the same between the parties on the same or adverse sides, as in its discretion it may think right and equitable.” This is one of the class of actions in which the court has the right to exercise this discretion, and how can we say that it abused that discretion, when the record discloses so little of the history of the case ? Before we would be warranted in so finding, there ought to be a clear showing of such abuse.

It is recommended that the judgment of the court below be affirmed.

By the Court: It is so ordered.

All the Justices concurring.