Hayes v. Hargus

Wood, J. (after stating the facts). There was no motion for new trial and no bill of exceptions. The cause “was submitted upon the account current of Frank Hargus, plaintiffs’ exceptions thereto, and the vouchers exhibited to said account current, and the record and evidence as to their validity and correctness.’ (1) In London v. McGehee, Trustee, 26 Ark. 469, we said: 1 ‘ The uniform holding of this court is that where the record shows that the cause was heard upon oral testimony and that testimony has not been- brought into the record by bill of exceptions, this court will presume, on appeal, in favor of the finding and judgment of the trial court, that every fact necessary to sustain the judgment was proved where evidence adduced at the proper time would have justified the court’s ruling.” See also Bassham v. Railway Co., 58 Ark. 399-401, and eases cited, Where there is no motion for new trial, we can only correct such errors as appear in the record proper or judgment roll. Williams v. State, 47 Ark. 230; Percifull and Wife v. Platt, 36 Ark. 456-61. Any error apparent upon the face of this record, considering the entire proceedings of the probate court as part of the judgment roll or record proper, could have been cured by evidence introduced at the proper time. (2-3) . The probate court had. jurisdiction of the subject matter and of t'he parties here sought to be made 'liable for the alleged irregular and illegal administration of the estate of Catherine Hargus, and had power to enter such orders and judgments after hearing the evidence introduced as would fully protect the- interests of those in the estate. The record shows that the probate court heard the exceptions to the “first and final account current of Frank Hargus, and,afte;r hearing the evidence of witnesses adduced orally at the bar of the court ” found a certain balance due by him to the estate. The circuit court on appeal likewise heard the exceptions on the record and evidence and rendered its judgment. Appellants contend that no inventory was ever filed by Frank Hargus, but the record shows that an “inventory of the estate of Catherine Hargus was presented to the court for examination/’ and the record further shows that Frank Hargus charged himself in his Recount current “to amount of inventory $1,965.68.” These record entries taken together were sufficient to show that the inventory was filed by Hargus, but if not, it would be presumed that the court found from the oral evidence that such inventory was filed by Hargus, and that the court before rendering final judgment became possessed of all the facts showing what the inventory contained or should have contained, and based its judgment upon such facts. Another contention of appellants is that the claims against the estate were not authenticated as the law requires. But again-the probate court and the circuit court having heard the evidence pertaining to these claims must be presumed to have found that such of them as they approved in the account current of Hargus were just and correct, presented for probate in apt time and should have been allowed and paid even though they had not been duly authenticated in the first instance. The record shows that the circuit court remanded the cause to the probate court to have Frank Hargus restate his account and to submit affidavits from the parties whose claims against the estate he had paid, and the record of the probate court recites that “Frank Hargus has complied with the said order of the circuit court” and the record of the circuit court recites that “Frank Hargus did procure and attach to all of said vouchers the required affidavit and presented the;same to the probate court” except for the amount wherein it entered judgment against him. Appellants say that the affidavits brought before the probate court and the circuit court on appeal showed that he had only furnished affidavits covering $455.28, whereas he should under the order of the circuit court have furnished affidavits covering the entire amount of $1,214.25 that had been found by the^ circuit court to be due by Hargus to the estate when it first ordered the cause remanded for restatement of his account. But here again the findings of the probate and circuit courts that Hargus had complied with the orders of the court cannot be overcome by the mere absence of some of the affidavits from the record. The presumption must be indulged that the finding of the court that Hargus had complied with its order is correct, in the absence of a bill of exceptions or a recital in the judgment itself showing that only the affidavits set forth in the transcript were considered. The other contentions of appellant cannot be sustained for the same reason. The appellants have not shown by the record lodged in this court any errors for which the judgment of the circuit court should be reversed and it is therefore affirmed.