Topping v. Tuckel

[388] The opinion of the court was delivered by Thiele, J.: This was an action for judgment on a promissory note, and the defendant, Felix Tuekel, appeals from a judgment against him. The petition was in usual form, a copy of the note being attached as an exhibit. Defendant Tuekel filed an unverified answer consisting of a general denial, a specific denial that he had made any payment on the note after July 7, 1936, and alleged that by reason of the statute of limitations plaintiff was not entitled to recover. As shown by the journal entry attached to the notice of appeal, trial was by the court, and after the plaintiff and defendant offered their evidence, the court took the matter under advisement and later rendered judgment for plaintiff against the defendant Tuekel. Tuekel filed a motion for a new trial and upon its being denied, he appealed to this court. The abstract of the record filed in this court does not contain any specification of errors as required by Rule 5 of this court. Neither does it contain any of the evidence offered at the trial, nor, in lieu thereof, any statement that no evidence was introduced to show any particular fact, as is permitted by the above rule. In his brief appellant argues only that there was no substantial evidence to sustain the judgment rendered. From our examination of the record presented, we have concluded this appeal must be dismissed for lack of merit and for the following reasons: 1. In view of the failure of the appellant to include any specification of error in his abstract, no question for review is presented. See, e. g., Lambeth v. Bogart, 155 Kan. 413, 125 P. 2d 377; Hall v. Eells, 157 Kan. 551, 142 P. 2d 703; and the discussion in Biby v. City of Wichita, 151 Kan. 981, 982, 101 P. 2d 919. 2. The appellant’s answer was not verified as required by G. S. 1935, 60-729. There is no showing that lack of verification was waived. Such an answer presented no issue. See Niebauer v. Bivins, 149 Kan. 260, 268, 87 P. 2d 619; Christy v. Kinsinger, 149 Kan. 437, 87 P. 2d 615; Greensburg Production Credit Ass’n v. Buckner, 152 Kan. 398, 400, 103 P. 2d 881, and cases cited. 3. Were the question otherwise properly before us, the fact the .evidence was not abstracted precludes any examination of the question there was no substantial evidence to sustain the judgment ren [389] dered. See West’s Kansas Digest, App. and Error, §§ 694, 695, 696, Hatcher’s Kansas Digest, App. and Error, §§ 165,172. It is ordered that this appeal be dismissed. Btjrch, J., not participating.