
    The State v. Drorsky et al.
    1. Appeal: record: error must be affirmatively shown. Appeal from an order overruling a motion. The abstract contained evidence showing that the motion should have been granted, but did not state that it contained all the evidence on which the motion was heard. Held, in support of the ruling appealed from, that it must be presumed that there was other evidence justifying the ruling.
    
      Appeal from, Johnson District Court.
    
    Friday, December 16.
    
      Bemley & Bemley, for appellant.
    
      Bool c6 Jackson, for appellees.
   Reed, J.

At the January term, 1887, of the district court, the plaintiff tiled a motion to correct an entry made by the clerk in vacation. Prior to January 1st, the cause was pending in the circuit court, and was transferred to the district court at that date by operation of the statute abolishing the circuit court. (Chapter 134, Acts Twenty-first General Assembly.) The entry in question purports to be a final judgment in the case, and it was made up by the clerk from the memorandum made in the case by the judge of the circuit court at the October term, 1886, of that court. The motion was upon the grounds that the cause had never been finally submitted to the court, and that the memorandum of the judge from which the clerk made up the record related to an application for a temporary injunction which had been submitted to him in vacation. The motion was overruled, and the appeal is from that order.

The motion was supported by the affidavit of the attorney who appeared for the plaintiff in the court below, and his testimony tended strongly to establish the allegations of fact in the motion. The motion and affidavit are set out in the abstract on which the case was submitted; but it is not averred therein that the affidavit is all of the evidence introduced upon the hearing. It would have been competent for the court to hear other testimony on the question, and, in the absence of any showing to the contrary, we must presume that there was other evidence, and that the finding of fact implied by the order overruling the motion is sustained by the evidence. Affirmed.  