State v. Goodsell

Deemed, J.

(dissenting). — -I do not think the order in this case is appealable; but, if it were, I do not think we should reverse, because we do not have the record before us upon which the trial court acted. Without this we should not conclude there was error in the order denying the transcript. Without the record upon which the trial court acted. before us, we are assuming that some appealable ruling was made; whereas, this may have been the very ground upon which the trial court overruled the application, and, if this be so, we should not reverse. There is a presumption in favor of the action of the trial court in such cases, and the universal rule is that error must affirmatively appear to demand a reversal. Suppose defendant waived all errors by failing to take exceptions to the rulings of the court, or for any other reason failed to put himself in position to raise any question on appeal, surely in such a state of the record no transcript should be ordered. Aside from the question of fire right of appeal in such matters, we should have enough of the record before us to show that some question arose upon the trial which this court could consider. This -does not appear, and I would for these reasons affirm.

Ladd, L, concurs in the dissent.