
    C. H. Deford, as Sheriff of Greenwood County, v. W. H. Orvis.
    1. Ebbob, Not Presumed. Error is not to be presumed, but, in all cases where it is alleged, it must be affirmatively shown.
    2. New Tbiai, — Filing, not Shown. Where it is not shown by the record that the motion for a new trial was filed within three days after the judgment was rendered, the supreme oourt cannot say that the district court erred in overruling the motion.
    
      Error from Greenwood District• Court.
    
    The opinion states the case.
    
      Glogston & Fuller, for plaintiff in error.
    
      8. 8. Kirhpatrick, for defendant in error.
   The opinion of the court was delivered by

Hoeton, C. J.:

Counsel for defendant below objects to the consideration of this case, upon the ground that the record is a peculiar one and defective in many particulars. It is doubtful whether the certificate of the .district clerk to the transcript conforms strictly to the requirements of the.law. It does not appear, however, that the motion for. a new trial was made or filed in time. The..trial occur,red.on the 31st day of January, 1890; tbe motion for the new trial was overruled on the 14th day of February, 1890. It does not appear from the record when the motion was filed. (Hover v. Tenney, 27 Kas. 133; Dyal v. City of Topeka, 35 id. 62.) The matter principally discussed in the briefs is the ruling of the trial court in presenting to the jury certain questions of fact to be answered, after the attorney of defendant had closed his argument, and in permitting the attorney for the plaintiff to discuss these questions of fact to the jury, and suggesting answers. Of course, the better practice is, that all questions of fact should be prepared, and notice thereof given, before the argument. These matters, however, are somewhat in the discretion of the trial judge, in the absence of any provision of our statute thereon. But, in this ease, the attorney for defendant below should have requested permission of the court, after the argument to the jury on the questions, for further argument on his part. This was not done.

The judgment of the district court will be affirmed.

All the Justices concurring.  