No. 73 | Kan. Ct. App. | Dec 4, 1895
The opinion of the court was delivered by
The errors complained of as set forth in the petition in error in this case are, that “said defendant in error recovered a judgment against this plaintiff in error for costs,” and “plaintiff in error says that there was error committed in said action as shown by said ease made, in that the decision should have been for this, plaintiff in error. The
A petition in error similar to. this has been passed upon twice by our supreme court. In Brown v. Rhodes, 1 Kan. 364, the court says :
‘ ‘ There are but three allegations of error in the petition. The first two allege error in the charge of the court to the jury, which charge does not appear upon the record. The third is, that the judgment was for Rhodes, and should have been for Brown. It does not state what erroneous ruling caused the rendition of the judgment for Rhodes, nor whether it was the fault of the court or of the jury. It is general and indefinite, and does not set forth the error complained ■of. There is, therefore, no alleged error set forth in the petition that appears upon the record.
“The code (§527) requires the plaintiff in error to file his petition, ‘ setting forth the errors complained ■of.’ And any error not so set forth is, therefore, not complained of, but waived by the party, and the court will not consider it. (See Nash’s PI. & Pr. 692, and cases there cited.)”
In Green v. Dunn, 5 Kan. 262, the court says :
“The fourth and last assignment of error is, that the judgment was given for the plaintiffs, when it should have been given for the defendant. Such a general and indefinite assignment of error can seldom be considered or regarded by this court. (Brown v. Rhodes, 1 Kan. 359" court="Kan." date_filed="1863-07-15" href="https://app.midpage.ai/document/brown-v-rhodes-7881986?utm_source=webapp" opinion_id="7881986">1 Kan. 359.) ”
Following the rule laid down in these cases, that no errors are set forth in the petition in error, we have nothing to consider. The writer of this opinion dislikes to deprive a litigant of a substantial right because of his misapprehension of the requirements necessary in the preparation of his case, and hence this case has been carefully examined. We should have affirmed the judgment of the court below if all
The judgment of the district court is affirmed.