Hover v. Tenney

The opinion of the court was delivered by Horton, C. J.: The record in this case shows that the trial was had on the 25th day of November, 1880. After the rendition of a verdict by the jury for the plaintiff below and the entry of judgment thereon, the plaintiff in error (defendant below) filed a motion for a new trial, alleging errors occurring during the trial. The record is silent as to the date of the filing of this motion, but it appears that such motion was heard on the 8th day of December, 1880, several days after the verdict and judgment were rendered. As it is not shown by the record that the motion was filed within the time required by § 308 of the code, and no reason given for delay in the filing of the motion, and as the court overruled the motion upon the hearing thereof, it will be presumed by this court, for the purpose of upholding the [134] judgment of the court below, that the motion was not made in time, and therefore the court below did not err in overruling it. Error is never presumed; it must always be shown, and if it is not affirmatively shown, it will be presumed that no error has been committed. (Bartlett v. Feeney, 11 Kas. 593; Nesbit v. Hines, 17 Kas. 316; Lucas v. Sturr, 21 Kas. 480.) If the motion was not made in time, all errors occurring during the progress of the trial were waived. Upon the record as presented, the judgment of the court below must be affirmed. All the Justices concurring.