Prewitt v. Wilborn

• Decision Date: 28 March 1919
• Citation: 184 Ky. 638,212 S.W. 442
• Parties: PREWITT v. WILBORN ET AL.
• Court: Kentucky Court of Appeals

212 S.W. 442

184 Ky. 638

PREWITT v. WILBORN ET AL.

Court of Appeals of Kentucky.

March 28, 1919

Rehearing Denied, June 20, 1919.

Appeal from Circuit Court, Wolfe County.

Action by Clifton Prewitt, Sr., against John Wilborn and others. From a judgment for defendants, plaintiff appeals. Reversed and cause remanded for a new trial.

Edward C. O'Rear, of Frankfort, S. Monroe Nickell, of Hazard and H. R. Prewitt, of Mt. Sterling, for appellant.

Kelly Kash, of Irvine, and Robert H. Winn, of Mt. Sterling, for appellees.

HURT J.

The judgment appealed from was rendered at the June term, 1916 of the circuit court, and the record was thereafter filed in this court, and, after the order of submission in this court had been set aside on two occasions, was finally submitted on May 10, 1918. A motion was made by the appellees to strike the bill of exceptions from the record, and this motion was ordered to be passed and to be heard upon the final submission. The grounds of the motion to strike the bill, under the circumstances shown by the record, are deemed insufficient, and the motion was therefore overruled.

(b) This action was instituted by the appellant, Clifton Prewitt, and others, whom we will call the plaintiffs, against the appellees, whom we will call the defendants, on February 29, 1892, and hence it is a veteran. The answer was filed in August, 1892. It appears, from Goff v. Wilburn, 24 S.W. 871, 15 Ky. Law Rep. 614, decided January 23, 1894, that, a demurrer having been filed to the answer, it was carried back to the petition and sustained, and the petition dismissed, and from the judgment an appeal was prayed to this court, which resulted in the opinion supra, which reversed the judgment below, and after the cause was remanded to the trial court, on the 28th day of January, 1897, an amended answer and counterclaim was filed. On April 29, 1897, an amended petition was filed. January 21, 1898, a reply was filed. March 4, 1898, a rejoinder was filed. In 1903 the court dismissed the action, as it appears, for a want of prosecution. A suit was filed under section 518, Civil Code, for a new trial, which was dismissed, and the plaintiffs again appealed to this court, and secured a reversal of the judgment by the opinion of this court in Goff v. Wilburn, 79 S.W. 232, 25 Ky. Law Rep. 1963, on the 9th day of March, 1904. The cause was remanded for a new trial, and on September 21, 1904, the defendants filed a second amended answer and counterclaim. On May 5, 1905, an amended reply was filed by plaintiffs. A trial was had March 5, 1915, which resulted in a judgment for defendants. A new trial was granted to the plaintiffs by the trial court on December 29, 1915. On May 30, 1916, an amended reply was filed, and on the same day the defendants filed a rejoinder, and the pleadings were then completed by an agreement upon the record that all affirmative allegations in all the pleadings be considered as controverted of record. The pleadings were thus completed 24 years after the litigation began.

During the period of the pendency of the action it has suffered casualties, and the clerk inserted a memorandum in his transcript to the effect that the record books containing the orders made during the progress of the action up to May 29, 1913, were burned when the courthouse in Wolfe county was destroyed by fire on that date, and had never been supplied, and hence were not copied into the transcript. On July 26, 1915, the court, apparently upon its own motion, appointed a commissioner to supply the missing records, and, the commissioner never having reported, on the 7th day of March, 1916, the plaintiffs entered a motion to extend the time for the commissioner to hear proof and supply the lost records; but this motion never seems to have been acted upon by the court, and the commissioner never did report. On May 31, 1916, an order by agreement of the parties, was made, which recited that the parties then had present in court the original records in the cases of J. M. Bacon et al. v. Wash Miller et al. and Wash Miller et al. v. E. C. Chenault et al., which were the records of the Powell common pleas court, and that same could be used by either party, on the trial of this case, as if they were certified copies of the records of those cases, and that for the purposes of a trial of this case they should be treated as if filed in this case. No part of the record of the case of J. M. Bacon et al. v. Wash Miller et al., is copied into the transcript or bill of exceptions, except a deposition of S. F. J. Trabue, whch was offered to be read, but excluded by the court.

The appellees now insist that the judgment ought to be affirmed, because the appellant has not brought to this court the entire record of the case, inasmuch as he has not brought the orders in the case, which were burned, nor all of the records of the case of J. M. Bacon et al. v. Wash Miller et al. It is a well-settled rule that, before a judgment should be reversed, an error prejudicial to the rights of the appellee should affirmatively appear from the record, and the necessary result of this rule is that every presumption is indulged in favor of the correctness of the judgment appealed from. Dixon v. Melton, 137 Ky. 689, 126 S.W. 358, Ann.Cas. 1912A, 457; Huffaker v. National Bank, 13 Bush, 644. Hence an appellant, if he would secure a reversal here, must exhibit a sufficiency of the record as will show affirmatively that the decision appealed from is erroneous, after indulging the presumption, which follows a showing, upon the record presented, that a portion of the record of the case had been omitted. Where the transcript as made shows that a portion of the record of the case is omitted, which must have been before and considered by the court in arriving at the decision, it will necessarily be presumed that the omitted portion justified the decision, as where a judgment overruling a demurrer to a pleading is appealed from, and the record shows that an amendment to the pleading had been filed before the decision, and the amendment is omitted from the transcript, it will be presumed on appeal that the amendment cured the defect; or if an appeal is from a decision on a question of fact, and the record shows that the evidence or a portion of it has been omitted, it will be presumed that the omitted portion sustained the judgment; or if an appeal is prosecuted because of the failure to give an offered instruction, and the instructions given are omitted from the record, on appeal it will be presumed that whatever was correct in the rejected instruction, was embodied in the instructions which were given; or if all the instructions are omitted, the presumption will be that the instructions were correct; or if certain ones are omitted, the same presumption will be indulged in their favor; or if the pleadings are omitted, the presumption will be indulged that they were sufficient to justify and sustain the judgment; or if the evidence is omitted, and a peremptory instruction was given, it will be presumed that the peremptory was proper.

There have been many cases determined by this court, wherein the presumption of the soundness of the judgments of the trial court was indulged, and dealing with many different situations, wherein the presumption has arisen, as will appear from the following cases, which are only a few of those in which the principle has been declared and adhered to, but they illustrate its reason and extent: Huffaker v. National Bank, supra; Bowman v. Holloway, 14 Bush, 426; Bean v. Meguiar, 96 Ky. 553, 29 S.W. 306, 16 Ky. Law Rep. 715; McNew v. Williams, 36 S.W. 687, 18 Ky. Law Rep. 364; Braswell v. Hurley, 149 Ky. 205, 148 S.W. 32; Heard v. Cherry, 150 Ky. 319, 150 S.W. 361; Trosper Coal Co. v. Tway Mining Co., 183 Ky. 354, 209 S.W. 58; Mayo v. Emery, 103 Ky. 637, 45 S.W. 1048, 20 Ky. Law Rep. 638; Com. v. Keger, 1 Duv. 240; Jones' Adm'r v. Jones, 60 S.W. 488, 22 Ky. Law Rep. 1280; Dixon v. Wood, 64 S.W. 724, 23 Ky. Law Rep. 1004; Brashears v. Frazier, 43 S.W. 244, 19 Ky. Law Rep. 1259; Rudd v. Monarch, 32 S.W. 1083, 17 Ky. Law Rep. 893; Farmers' Bank v. Farmers' Bank, 147 Ky. 766, 145 S.W. 746; Wickliffe v. Farmers' Bank, 142 Ky. 35, 133 S.W. 966; Moore v. Bishop, 49 S.W. 957, 20 Ky. Law Rep. 1622; Maize v. Bradley, 64 S.W. 655, 23 Ky. Law Rep. 993; Miles v. Miles, 103 Ky. 496, 45 S.W. 506, 20 Ky. Law Rep. 182; Johnson v. Postal Telegraph & Cable Co., 50 S.W. 1, 20 Ky. Law Rep. 1821; Kugler v. Rouss, 64 S.W. 625, 23 Ky. Law Rep. 979; Davis v. Bailey, 53 S.W. 31, 21 Ky. Law Rep. 839. The presumption, however, does not arise from the omission of parts of the record, which were not considered by the court upon the trial, and could not have influenced the decision, and which, if present in the record here, would not be necessary to be considered, to determine the correctness of the decision. Further, even if absence of certain portions of the record here appears from the record, yet, if the record filed here affirmatively shows that the decision below is erroneous, it will be reversed. McMillan v. Stephens, 49 S.W. 778, 20 Ky. Law Rep. 1528.

It seems that the pleadings and everything necessary to be considered by the court, and in fact everything that was considered upon the trial, are embodied in the transcript and bill of exceptions. A portion of the pleadings was filed before the destruction of the courthouse and a portion of them has been filed since. Two trials have been had since the burning of the courthouse. Into the first of these the appellees entered without objection, and into the latter, as the result of which the judgment appealed from was rendered each of the parties entered without objection, and with full knowledge of the absence of the records...