Ward v. Owens, 12 Ill. 283 (1850)

Dec. 1850 · Illinois Supreme Court

12 Ill. 283

Abraham N. Ward, Appellant, v. William M. Owens et al., Appellees.

APPEAL FROM CUMBERLAND.

The statute authorizing testimony to he introduced orally in chancery, does not dispense with the necessity of incorporating the testimony in the record.

This Court will not presume that any proof was made, that does not appear of record.

All that is necessary for an understanding of this case, is set out in the opinion of the Court. The decree was ordered by Harlan, Judge, at the October term, 1850, of the Cumberland Circuit Court.

Stuart and Edwards, for Appellant.

Lincoln & Herndon, for Appellees.

Treat, C. J.

This was a bill in chancery to set aside a conveyance. The answer denied the allegations of the bill, and the cause was at issue by the filing of a replication. A decree was entered for the complainant, which the defendant assigns for error. The record fails to show, that any evidence was given to sustain the averments in the bill. The statute authorizing testimony to be introduced orally at the hearing, was only designed to change the mode of taking proof in chancery cases, and does not dispense with the necessity of incorporating it into the record. The evidence, or the facts proved by it, ought to be stated in the record. This Court will not presume that any other proof was made than what appears in the record. Such was the express decision in the ease of White v. Morrison, 11 Illinois, 361. There is then no basis on which this decree can stand. It will be reversed, with costs, and the cause remanded for further proceedings.

Decree reversed.