Everett v. Everett

The opinion of the court was delivered by Johnston, C. J.: This action was based on a claim made by the plaintiff, A. B. Everett, against the estate of E. J. Everett, deceased. It was presented to the probate court and there refused, and upon appeal the district court determined that plaintiff should take nothing by his appeal. He brings the case here for review, alleging error in the admission of evidence and also that on the evidence presented judgment should have been rendered for him. Plaintiff sets out in his abstract what purports to have been the evidence introduced at the trial of the case. The correctness of the evidence as stated in his abstract is challenged by the defendant. A certified transcript of the evidence has never been made or filed. The plaintiff is not entitled to a review of rulings on evidence unless a certified transcript has been made and filed. In the absence of a transcript the appellee is unable to test the correctness of plaintiff’s abstract or to make a counter-abstract, and when the abstract is challenged this court has no means of settling the challenge or of determining what evidence was actually received and considered by the trial court. In earlier decisions it has been held that to obtain a review of questions depending on the evidence, it devolves upon the appellant to procure an official transcript of all the evidence introduced unless the necessity has been avoided by an agreement of counsel or a statement that it contains all the evidence relating to a particular matter on review. (Baker v. Readicker, 84 Kan. 489, 115 Pac. 112; [443] Typewriter Co. v. Andreson, 85 Kan. 867, 118 Pac. 879; Readicker v. Denning, 86 Kan. 79, 119 Pac. 533; Davidson v. Timmons, 88 Kan. 553, 129 Pac. 133; McGuire v. Davis, 95 Kan. 486, 148 Pac. 755; Paving Co. v. Lumber Co., 97 Kan. 294, 155 Pac. 38; Caldwell v. Skinner, 105 Kan. 32, 181 Pac. 568.) On motion for a new trial filed by appellant, he produced affidavits which he insists set forth proposed testimony that is new and not cumulative, but whether it was'new or of a cumulative character depends upon the evidence actually offered, and in the absence of a record of the evidence these questions cannot be determined. The appeal is dismissed.