EVANS
v.
STETTNISCH
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In Evans v. Stettnisch, the Supreme Court addressed whether an affidavit filed in support of a motion could be used on appeal to contradict the trial court record regarding whether proper notice was given to the plaintiff. The Court held that only errors apparent on the record itself can be reviewed on appeal, that affidavits used in motions do not become part of the record unless incorporated into a bill of exceptions, and that the trial court's recital in the record imports absolute verity and cannot be overthrown by an affidavit on review. The judgment was affirmed.
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Mr. Justice Brewer,
’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: 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Johnson v. United States, 225 U.S. 405 (U.S. 1912)…ntradicted by an. affidavit which counsel filed in the case, even if it had been filed for such purpose, which, according to counsel, it was not, but "to call the attention of the cou'rt to the defect on the face of the record.” Evans v. Stettnisch, 149 U. S. 605, 607. (2) Prior to January 15, 1897, homicide, as a crime against the United States was divided into murder and manslaughter "when committed within any fort, arsenal, dock-yard, magazine, or in any other place or . district of [*412] country under…
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Flanagan v. Benson, 37 F.2d 69 (8th Cir. 1929)…92, 794, 10 C. C. A. 71, 73; Hildreth v. Grandin, 97 F. 870, 872, 38 C. C. A. 516, 518; Ghost v. United States, 168 F. 841, 842, 94 C. C. A. 253, 254; England v. Gebhardt, 112 U. S. 502, 504, 505, 5 S. Ct. 287, 28 L. Ed. 811; Evans v. Stettnisch, 149 U. S. 605, 13 S. Ct. 931, 37 L. Ed. 866; Metropolitan R. R. Co. v. District of Columbia, 195 U. S. 322, 324, 330, 25 S. Ct. 28, 49 L. Ed. 219. And neither the filing' of a written motion founded on evidence, nor the recital by the clerk in his record of the…1 / 2
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Pistillo v. United States, 26 F.2d 202 (8th Cir. 1928)…paper is found among the files in a cause does not of itself make it a part of the record. If not a part of the pleadings or process in a cause, it must be put into the record by some action of the court.” To the same effect is Evans v. Stettnisch, 149 U. S. 605, 607, 13 S. Ct. 931, 37 L. Ed. 866. And in Metropolitan R. R. Co. v. District of Columbia, 195 U. S. 322, 324, 330, 25 S. Ct. 28, 29 (49 L. Ed. 219), the Supreme Court held that written requests for instructions to the jury, on file in the court bel…1 / 2
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- Stewart v. Wyo. Cattle Ranche Co., 128 U.S. 383 (U.S. 1888)