Evans v. Stettnisch
Cases that cite this one
17 later published cases cite this decision.
- Zachry v. Zachry (Neb. 1970)
- Middleton v. Hartford Acc. & Indemnity Co. (5th Cir. 1941)
- Century Indemnity Co. v. Nelson (9th Cir. 1938)
- Philipbar v. Derby (2d Cir. 1936)
- Guth v. Minnesota Mining & Mfg. Co. (7th Cir. 1934)
- Flanagan v. Benson (8th Cir. 1929)
- Pistillo v. United States (8th Cir. 1928)
- Ana Maria Sugar Co. v. Quinones (1st Cir. 1918)
- Ghost v. United States (8th Cir. 1909)
- Cassatt v. Mitchell Coal & Coke Co. (3d Cir. 1907)
- Hildreth v. Grandin (8th Cir. 1899)
- Downing & Co. v. United States (Court of Customs and Patent Appeals 1925)
- People v. Tielke (Ill. 1913)
- Johnson v. States (D.C. Cir. 1912)
- In re McCall (6th Cir. 1906)
- F. C. Austin Mfg. Co. v. Johnson (8th Cir. 1898)
- Duncan v. Atchison, T. & S. F. R. (9th Cir. 1896)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion
’after stating the case, delivered the 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:
*607 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. Wyoming Ranche Co., 128 U. S. 383; Backus v. Clark, 1 Kansas, 303; Altschiel v. Smith, 9 Kansas, 90; Jenks v. School District, 18 Kansas, 356; Tiffin v. Forrester, 8 Missouri, 642; McDonald v. Arnout, 14 Illinois, 58; Smith v. Wilson, 26 Illinois, 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 fáithful 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.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.