Everett v. Everett
| Decision Date | 11 February 1922 |
| Docket Number | 23,471 |
| Citation | 204 P. 723,110 Kan. 442 |
| Parties | A. B. EVERETT, Appellant, v. A. J. EVERETT, as Administrator of the Estate of E. J. EVERETT, Deceased, Appellee |
| Court | Kansas Supreme Court |
Decided January, 1922
Appeal from Greeley district court; ALBERT S. FOULKS, judge.
Appeal dismissed.
SYLLABUS BY THE COURT.
APPEAL--Review of Evidence Asked--No Official Transcript of Evidence Filed--Appeal Dismissed. To obtain a review of questions depending on the evidence it devolves upon the appellant to procure an official transcript of all evidence affecting the determination of such questions, and where he fails to procure such transcript his appeal will be dismissed.
W. M Glenn, of Tribune, for the appellant.
George L. Reid, of Tribune, and H. A. Russell, of Scott City, for the appellee.
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 P. 112; Typewriter Co. v. Anderson, 85 Kan. 867 118 P. 879; ...
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Barker v. Fleming
... ... [148 P.2d 495] ... arising on the evidence, Hegarty v. National Refining ... Co., 110 Kan. 171, 204 P. 144; Everett v ... Everett, 110 Kan. 442, 204 P. 723; Sproul v ... Russell, 135 Kan. 620, 11 P.2d 978; Darst v ... Swazee, 135 Kan. 458, 11 P.2d 977; ... ...
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Bisagno v. Lane
...will not be reviewed and their appeal will be dismissed.' (Syl.) See also McGuire v. Davis, 95 Kan. 486, 491, 148 P. 755; Everett v. Everett, 110 Kan. 442, 204 P. 723; Buchwalter v. Henrion, 111 Kan. 781, 208 P. 645; Darst v. Swazee, 135 Kan. 458, 11 P.2d 977; Sproul v. Russell, 135 Kan. 62......
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State v. Bennell
... ... introduced, unless the necessity is avoided by agreement of ... counsel or is not necessary to a review. See Everett v ... Everett, 110 Kan. 442, 204 P. 723, and cases cited ... It is ... further urged by appellant that the nuisance, if any, had ... ...