
    First National Bank of Breeze, Illinois, v. Williams Feed Company, a Partnership.
    (Decided March 26, 1926.)
    Appeal from Pike Circuit Court.
    1. Appeal and Error. — Motion for new trial of ordinary action, not transferred to equity, though tried by court without jury, is necessary to present questions relied on for reversal.
    
      2. Appeal and Error.— Errors based on evidence cannot be ©viewed unless made part of record in legal form.
    3. Appeal and Error. — In absence of evidence, incorporated in record in legal form, only question presented on appeal is whether pleadings sustain judgment.
    4. Appeal and Error. — Evidence, when not made part of record, will be presumed by appellate court- to sustain judgment.
    5. Clerks of Courts. — Clerks of circuit court must index transcript, in view of Court of Appeals Rule 3, subsections 7-10, and may be penalized for failure to do so.
    PICKLESIMER & STEELE for appellant.
    DAUGHERTY &' BARRETT for appellees.
   Opinion op the Court by

Judge Thomas

-Affirming.

The Williams Feed Company (hereinafter referred to as plaintiff) was a partnership -composed of John Scott and Robert Williams, and the firm conducted a general retail feed store in the town of Pikeville, Kentucky. On June 23,1923, plaintiff purchased from the defendant, Aviston Milling Company, a corporation of Aviston, Illinois, a carload of “flour -and feed” as described in the petition, but how much of each is nowhere alleged. Plaintiff paid a sight draft attached to the bill of lading and sent to a local bank in Pikeville covering the invoice of the shipment before the goods were unloaded from the car. It claimed that some of the flour which it sold to some of its customers was afterwards discovered to be spoiled because it was found to contain “worms, bugs, dirt, filth and foreign matter,” rendering it “unhealthy, unsanitary and unfit for baking or domestic use.” It so notified defendant, but for some cause the matter was not adjusted, and in the latter part of March, 1924, Scott, one of the members of plaintiff company and who was a member of another firm in Pikeville, ordered from defendant a consignment of another carload of merchandise for the latter company, and when it arrived in Pikeville plaintiff filed this ordinary action against defendant and caused an attachment to issue which the sheriff attempted to levy on the latter consignment of merchandise. Defendant was not served with process but a warning order was issued on the averments contained in the petition, followed by the appointment of a corresponding attorney, and a copy of the attachment was also delivered to that attorney. Soon thereafter plaintiff procured an order from the circuit judge to sell the attached property to satisfy its alleged debt growing out of tbe alleged depreciated condition of the flour wbicb was fixed in tbe petition at tbe sum of $1,000.00, one-half of wbicb was because of tbe decreased value of tbe whole shipment' of flour and tbe other half represented damage to plaintiff’s business as a result thereof. Some two or three days before tbe order of sale was to be carried into effect by tbe sheriff tbe appellant, First National Bank of Breeze, Illinois, filed its intervening petition in tbe cause and alleged that immediately upon making tbe attached shipment tbe defendant transferred to it tbe bill of lading therefor, as well as tbe draft attached thereto covering its invoice, and it credited defendant on its books with tbe amount of tbe draft, by means of all of wbicb it became tbe owner of tbe consignment as well as tbe draft representing its value. Plaintiff denied all tbe averments of that pleading, and upon trial before tbe court without a jury a personal judgment was rendered against defendant, who bad never appeared in tbe cause; tbe attachment was sustained and appellant’s intervening petition dismissed, to reverse which latter order this appeal is prosecuted.

Before taking up tbe controlling questions in tbe case we feel impelled to say that this record truly presents a “comedy of errors,” beginning with tbe filing of tbe petition and continuing and including tbe filing of tbe record in this court, and in tbe commission of wbicb both parties to this appeal participated. To begin with, the petition, we repeat, nowhere alleged tbe amount of flour contained in tbe shipment complained of, nor was there any averment as to tbe extent of its depreciation on account of tbe defects relied on. Tbe only one in tbe petition on that point was that plaintiff sold tbe flour “ at a loss of more than $500.00 on account of tbe condition of said flour,” and that, “their trade in flour has been and is damaged in tbe sum of $500.00,” because of loss of customers. In tbe affidavit for the attachment nothing was said as to tbe nature of plaintiff’s claim other than tbe general statements in tbe petition as grounds for recovery, nor did tbe affidavit state tbe amount that plaintiff ought to recover, or that its claim was just, each of wbicb are required by section 196 of tbe Civil Code. In addition to those defects in tbe affidavit to procure the attachment the record does not disclose that- any attachment bond was ever executed at any time.

There was no statement in the petition, or in any affidavit filed in the cause, giving the name of a place wherein a post office was kept nearest to where the defendant or its chief officer or agent resided, or might be found, as is required by subsection 2 of section 58 of the Civil Code; nor was their any statement excusing such failure and, therefore, the requisite showing for a warning order was not made. However, defendant did not appear in the cause and no motion or other step was taken by any one to correct or take advantage of such defects. Clearly, the personal judgment against defendant was absolutely void, and, perhaps, also the same is true with reference to the warning order, but none of those questions are presented on this appeal for our determination. What purports to be the proof (a consideration of which will hereinafter be made) discloses that there was no competent testimony as to the extent of plaintiff’s damage. The only witnesses who testified upon that issue were the members of the firm, and what they testified to was elicited by most glaring, and improper leading questions to which no objection was made. Scott testified that the feed contained in the shipment about which complaint is made was in perfect condition, and that it was only the flour contained in the shipment that was any wise damaged or depreciated. Upon the question of plaintiff’s damage on that account he was asked and answered these two questions: “Did the Williams Feed Company sustain any damage by reason of the purchase of this spoiled flour, and by reason of its sale by you in your trade? A. Yes, sir. Q. What amount of damages, on account of these two facts, first the purchase of the spoiled flour, and second, its sale to your trade, would you say the Williams Feed Company sustained? A. $1,000.00 damages.” And that was all of his testimony upon the subject;

: Williams, the other member of the firm, thus testified upon the same issue: “ Q. Did you sell some of that flour to your trade? A. Yes, sir. Q. Did you have to repurchase part of the flour you sold to your trade? A. Yes, a good many of the people brought it back, some did not. Q. Were you damaged by reason of having sold this flour to your trade? A. Yes, sir, damaged considerable.” (Our italics). And it was solely upon that testimony, which was unobjected to, since defendant was not before the court, that the personal judgment against it was rendered and the attached property subjected to its payment. It is, therefore, clear that onr statement, supra, concerning the “comedy of errors” is established ■so far as plaintiff is concerned.

It has been made apparent that the pleadings cast the burden on appellant to establish its title to the attached property, which, of course, required the introduction of testimony. The clerk has copied certain papers in the transcript as the depositions of various witnesses testifying both for plaintiff and appellant, but no bill of exceptions was filed by the latter incorporating therein any testimony heard upon the trial, nor was there any motion made for a new trial. The action was an ordinary one, and was never transferred to equity, and though tried by the court without the intervention of a jury a motion for a new trial was necessary to present the questions relied on for a reversal. Sovereign Camp Woodmen of the World v. Hornung, 190 Ky. 381; National Council Daughters of America v. Polsgrove, 192 Ky. 195; Forgarty v. Neal, 201 Ky. 85, and Board of Drainage Commissioners v. I. C. Railroad Company, 202 Ky. 735. But even if there had been such a motion made, we could consider no question raised by it, except such as were founded upon the record made by the court, and could not review any errors based upon the evidence heard at the trial, unless it was made a part of the record in some legal form. Patrick v. Commonwealth, 213 Ky. 37, and other cases referred to therein.

Those cases also announce the rule that in the absence of the evidence the only question presented on appeal is: Whether the pleadings sustain the judgment? The only judgment complained of in this case is the one dismissing appellant’s intervening petition. The pleadings sustain it, and in the absence of the evidence we must presume that it also sustained that order. The affirmance of it will not be construed as approving other parts of the judgment affecting the rights of the defendant, milling company, and its remedies as a nonresident defendant, as furnished by various sections of the Code, will still be open to it.

Subsections 7, 8, 9 and 10 of rule III of this court relate to the indexing of the transcript by the clerk, and in subsection 9 it is provided that, “The name of each witness and the page on which his testimony begins shall be stated in the index.” The clerk in this case did not follow that rule, which is exceedingly important in assisting this court iu its examination of the record. We have frequently called attention to the circuit clerks in the Commonwealth to the rule, notwithstanding which its violation is persisted in, and because it was not observed in this case the clerk of the Pike circuit court will forfeit and not he allowed to collect $10.00 of his cost for making the transcript.

Wherefore, the judgment is affirmed.  