On Motion for Rehearing.
Appellees have filed their motion for a rehearing and insist, first, that we erred in maintaining jurisdiction of this appeal, in that it is shown by the undisputed evidence that at the time this suit was instituted Siah Turner, against whom judgment herein was rendered, was dead; that four years had not elapsed between the time of his death and, the institution of the suit; that he died possessed of property and owing debts other than the debt sued for herein by appellants, and it being thus shown that there was a necessity for an administration upon his estate; and that the county clerk of Jackson county had, and still has, exclusive jurisdiction over the estate of Siah Turner, deceased, in the adjudicating of claims against the same; and that, as the trial court was without jurisdiction to maintain appellants’ suit, this court was also without jurisdiction.
As shown in our original opinion, appellants alleged that no administration upon the estqte of Siah Turner had been taken out, and that none was necessary. If such allegation was supported by proof, the trial court had jurisdiction to try the cause. The court entertained the suit to its determination and rendered a final judgment therein, and, in the absence of a showing to the contrary, this court will presume that the trial court, before whom the cause was tried without a jury, found every essential fact necessary to sustain his jurisdiction.
The question of jurisdiction, so far as shown by the record, was not raised in the trial court nor presented to this court in the briefs of either party, and was not mentioned in any manner until the cause had been submitted and an opinion rendered, and. not until the motion for rehearing was filed in this court, and as a sequence no attempt was made to point out the evidence relative to the matter of jurisdiction in this court before the rendition of our judgment, nor has any party directed our attention to any evidence bearing upon the question by motion for rehearing or otherwise. It is true that in ap-pellees’ motion it is said that Siah Turner, at the time of his death, owed many debts, and that there was a necessity for an administration upon his estate, but no fact or facts relative to whether there were or were not any such debts at the time of the institution of this suit are shown, nor is there any reference to any record where such facts may be found.
It is not incumbent upon this court to scrutinize the statement of facts for the purpose of discovering whether there is or is not some evidence upon which the judgment of the trial court can be sustained. In the absence of any affirmative showing to the contrary, the appellate court will presume that the trial court had before it evidence to support its jurisdiction.
Appellees’ second contention for a rehearing is that this court erred in holding that there was neither pleading nor evidence to support, the finding of the trial court that the land involved in the suit was the homestead of Siah Turner and family at the time he and his wife, Pauline, executed and delivered to S. O. Cappel a deed of trust upon the same.
We still adhere to our conclusion that the existence of the facts pleaded by appellees would not constitute a homestead, but, as the trial court overruled appellants’ demurrer to such pleadings and thereby held that they were sufficient, it would be unfair to appellees to decide the cause favorable to appellants, upon the ground that appellees’ pleadings were insufficient, without giving, them an opportunity to amend such pleadings. We have, however, reached the conclusion that we erred in holding in effect that there was no evidence to support appellees’ plea of homestead, but; we think that the findings of the trial court that the land involved was the homestead of the Turners at the timo of the execution and delivery of the deed of trust to Cappel by Turner and wife, and its finding that appellees were not estopped to set up homestead exemption to the land, is so against the great weight and preponderance of the evidence as to be clearly wrong.
Having reached the conclusion as above expressed, it becomes our duty to grant the motion for rehearing and to reverse the judgment and remand the cause, and it is accordingly so ordered.