Evans v. Stettnisch/Opinion of the Court

The record of the trial shows that the parties appeared by their attorneys; discloses no application for a postponement, no objection to proceeding at the time, and no error in the course of the trial. As against this, there is an affidavit, which, as certified by the clerk, is among the files in the case. For several reasons this is insufficient.

In the first place, only errors apparent on the record can be considered; and an affidavit filed for use on a motion is not part of the record, any more than the deposition of a witness used on the trial, and only becomes a part of the record by being incorporated in a bill of exceptions. Stewart v. Ranche Co., 128 U.S. 383, 9 Sup. Ct. Rep. 101; Backus v. Clark, 1 Kan. 303; Altschiel v. Smith, 9 Kan. 90; Junks v. School Dist., 18 Kan. 356; Tiffin v. Forrester, 8 Mo. 642; McDonald v. Arnout, 14 Ill. 58; Smith v. Wilson, 26 Ill. 186.

In the second place, there is nothing to show that this was the only affidavit. The certificate of the clerk is simply 'that the foregoing folios, from 1 to 13, contain true and faithful transcripts from the records and files of said court in the case of Moses Evans v. Anna Stettnisch et al.' This certificate may be true, and yet a dozen affidavits contradicting the statements in this have been filed and used on the motion.

In the third place, if it were affirmatively shown that there was only the one affidavit, that is not sufficient to overthrow the recital in the record. The record imports absolute verity; an affidavit of a witness does not; and when the court, which, in addition, may be supposed to have personal knowledge of the fact, sustains the recital in the record as against the statement in the affidavit, its ruling cannot on review be adjudged erroneous.

In the fourth place, the statements in the affidavit are not necessarily a denial of the truth of the recital in the journal entry of the trial. The plaintiff was represented, as shown by the pleadings, by two counsel. This affidavit is by one only, and it is that no notice was given to plaintiff or affiant. The other counsel may have had notice and appeared, and consented to everything that was done. If so, plaintiff has no semblance of a cause for complaint. The judgment is affirmed.