39 Kan. 181 | Kan. | 1888
Opinion by
This action was brought to restrain the issuance and levy of execution in the case of Lee Dougan v. A. T. & S. F. Rid. Co., in which case judgment was rendered in favor of Dougan and against the railroad company, May 12, 1885, for $700 and costs. On defendant’s application, it was given ninety days from said date to make and serve a case for the supreme court upon plaintiff, who was given five days thereafter to suggest amendments; and the case was to be settled and signed during the August term, 1885. On the 6th day of July, the case was delivered by the company to the clerk of the court, and a day or two after he handed it to Barker & Pancoast, attorneys for Dougan. No amendments were ever suggested by Dougan’s attorneys, nor did they return the case-made to the clerk of the court, or the
There was a judgment in the case of Dougan v. the Railroad Company on the 12th day of May, 1885; the petition in this action was filed June 18, 1886, more than a year after said judgment had been rendered, and no petition in error had been filed in the supreme court; and under §2, chapter 126, Laws of 1881, (Comp. Laws of 1885, ch. 80, §'556,) the time had elapsed in which to bring action here.
The plaintiff claims that the statute named should not apply to them, because of the fraud of Pancoast, one of the attorneys for Dougan. The court finds that Pancoast was not guilty of any fraud, deception or unprofessional conduct practiced upon the said Santa Eé Railroad Company, or its attorneys, and we believe that such finding is amply supported by the evidence in the record before us. There were delays, suggestions and propositions made both by the attorneys for Dougan and for the railroad company, but none of them were in fact carried into effect, and the matter of presenting the case was allowed to drift along, probably without any intention of allowing it to go beyond the time permitted in which to bring the case here for review, until the year had fully elapsed. Some suggestions had been made by the attorney, Pancoast, which the attorney for the railroad company seemed to rely upon. It was about the time when the case should be presented to the judge and settled and signed, but there was no effort made to extend the time of settling and signing the case, and a part of the conversation and letters and suggestions were had after the time had elapsed at which the court had
This view of the case precludes us from examining the alleged errors in the action of Dougan v. A. T. & S. E. Rid. Co.; we therefore recommend that the judgment be affirmed.
By the Court: It is so ordered.