Skidmore v. C. W. Raymond Co. ( 1911 )

Opinion of the Court by

William Rogers Clay, Commissioner

— Affirming.

Appellants, C. B. Skidmore and Millard Skidmore, brought this action against appellee, C. W. Raymond Company, a corporation with its principal place of businessin Dayton, Ohio, to recover damages for fraud and! deceit alleged to have been practiced upon them by appellee in connection with tbe sale of certain machinery for making bricks and tiling. Upon the filing of the petition summons was issued and returned as follows: “Executed by delivering a true copy of the within smm mons to M. B. Currie, Jr., the defendant’s chief officer and agent found in Powell County, Kentucky, this 28th day of February, 1910. (Signed) George Stephens, Jailer, P. C.” Appellee, without entering its appearance, moved the court to quash and set aside the service of summons and return thereon, on the ground that the agent upon whoru process was served was not a chief officer or agent within the meaning of the Code. This motion was sustained, and the appellants having declined to ask for, or take further process, and announcing that they could obtain no other service, their petition was dismissed ; hence this appeal.

In the record before us certain affidavits are copied, but they are not made a part of the record by order of court or bill of exceptions; nor does tbe record show that the affidavits therein copied are all the affidavits that were read upon the hearing of the motion to quash, or that no other evidence was heard or considered by the court.

Where a question depending upon facts is brought before this court for review, the record itself should show that it contains all the evidence that was heard upon the motion. This can be done either by order of court or by bill of exceptions. The record before us fails to comply with this requirement. In the absence of such a showing, we must presume that the evidence adduced on the hearing of the motion was sufficient to justify the conclusion reached by the court. (Layton v. Weed Southern Machine Co., 4 Ky. Law Rep., 263; Louisville & Nashville R. R. Co. v. Mazzone, 9 Ky. Law Rep., 151; Johnson v. Postal Telegraph & Cable Co., 20 Ky. Law Rep., 1821; Runyon v. Burchett, 135 Ky., 180.)

Judgment affirmed.