O'Bryen v. Hays Land & Investment Co. , 80 Kan. 427 ( 1909 )

Per Curiam:

It is conceded that the material facts of this case are the same as in Doyle v. Hays, ante, p. 209, with the exception now to be noted: In the Doyle case the record stated the nature of the pleadings, affidavit for service by publication, the publication notice and the printer’s affidavit of publication in the action wherein the judgment' in Puckett against Forsythe, pleaded and offered in defense, was rendered. Here the defendant, O’Bryen, offered the same judgment and the same papers in evidence, but the case-made does not show the nature of the papers offered further than appears from the description just given. When 'the Puckett judgment was offered in evidence the plaintiff made the following objection, which was sustained at the conclusion of the case:

“To the introduction of which the plaintiff objects ■on the ground that the same is immaterial, because it fails to bind the parties through whom the plaintiff -acquired title to the note and mortgage sued on in this action, none of them being made parties defendant in said action.”

This being the only objection offered and the one sustained, it must be presumed that the court rejected the evidence for the reasons stated therein, and not, as the plaintiff suggests, because the notice or publication thereof may have been insufficient. While it is true that a reversal can not be directed unless error affirmatively appears in the record, the presumption of regularity will not be carried to the' extent of holding that a judgment to which only one objection was made, and which is not shown to be subject to any other, was in fact rejected because of some other reason not in any manner disclosed or suggested by the record.

It is also urged that the record does not show that, other evidence was not offered which may have shown that the judgment was void. This claim can not be sustained, in view of the fact that the judgment was. rejected upon a specific objection clearly stated. Although perhaps unnecessary, we are constrained to-hold that the record fairly shows that it contains all the-evidence, although it is not so stated in precise terms. The evidence contained in the case-made in the Doyle case and in this consists wholly of admissions made and documents read, and appears to fall fairly within, the rule stated in Dewey v. Linscott, 20 Kan. 684, which was not departed from in McCormick v. Fromme, 69 Kan. 857, and other cases cited by the plaintiff. (See, also, Lewis v. Linscott, 87 Kan. 379.)

As the defendant held possession and claims title-under the same judicial records as the defendant in the-Doyle case, the judgment is reversed, and the cause remanded for a new trial.