Lucas v. Sturr

• The .opinion of the court was delivered by Valentine, J.: The judgment of the court below in this case will be affirmed for the following, among other reasons, and upon the following, among other authorities: First: Error, is never presumed, but must always be affirmatively shown. (Hall v. Jenness, 6 Kas. 357; Winsor v. Cole, 10 Kas. 620; Bartlett v. Feeney, 11 Kas. 594; Kelley v. Davis, 19 Kas. 510; Kupfer v. Sponhorst, 1 Kas. 75; Bainter v. Fults, 15 Kas. 323.) Therefore, where it is shown by the record that the court below on the fifth day after rendering the judgment in the case, overruled a motion for a new trial made on the ground that the decision of the court below Avas against the law and the evidence, and it is not shown by the record that said -motion was ever reduced to writing or filed in the court as it should have been, (Gen. Stat. 688, §309; Clayton v. School District, 20 Kas. 256,) or that it was made within three days after the judgment was , rendered, as it should have been, (Gen. Stat. 687, §308, and cases hereafter cited,) or that it Avas made at any time before it was presented to the court below for hearing, it will be presumed by the supreme court, for the purpose of upholding the judgment of the court below, that said motion was not. made in time, and therefore that the court below did not err in overruling it. (Odell v. Sargent, 3 Kas. 80; Mitchell v. Milhoan, 11 Kas. 617; Nesbit v. Hines, 17 Kas. 316; Fowler v. Young, 19 Kas. 150.) And because said motion was not made in time, it will be deemed that all errors occurring -during the progress of the trial were waived. (See the two cases last cited, and Clay v. School District, 20 Kas. 262.) Counsel for defendant in error say, in their brief, that no motion for a new trial was ever in fact filed in the case, and counsel for plaintiff in error, Avho filed a brief in reply, does not say that there was. Second: Upon the evidence in this case we think the court below settled conclusively by its general finding all the questions now raised in this- court, and settled them in favor of the defendant and against the plaintiff. (Winstead v. Standeford, 21 Kas. 270, first point decided, and cases there cited.) Third: The question on the mortgage we also think is settled. (Vickroy v. Pratt, 7 Kas. 238; Brewster v. Madden, 15 Kas. 249.) And it really makes no difference whether the land in controversy, at the time it was mortgaged, belonged absolutely to the Indians, or was held in trust by the government of the United States for the Indians. In either case the mortgagor had no interest in the land at the time he mortgaged it, and therefore the mortgage was void. Fourth: As to any remaining questions, see Rettman v. Richardson, 17 Kas. 413. Judgment below affirmed. All the Justices concurring.