| Kan. | Jul 15, 1880
The opinion of the court was delivered by
This was an action of forcible entry and detainer, commenced in a justice’s court by White, plaintiff below, against Bond, defendant below, to obtain restitution of a quarter-section of land in Neosho county. White recovered before the justice, and Bond appealed. The trial in the district court again resulted in favor of White, and Bond brings the cause to this court for review.
■ We shall pass the first question presented by counsel, with the simple remark that we consider the complaint sufficient. It was a pleading in the justice’s court, and the defendant could in no manner have been misled by it. The only question we deem it necessary to consider is a ruling on the admissibility of certain testimony offered by defendant. This testimony was a transcript of the record of an action between the same parties. By this transcript it appeared, that on February 25th, 1879, plaintiff commenced an action of forcible entry and detainer, for the recovery of the possession of the same land. The complaint charged the forcible entry and the notice to quit upon the same day as were alleged in the complaint in the case at bar. Indeed, the two cases were in all respects alike. The transcript further showed that, the
We think this evidence was competent. It tended to show another action pending between the same parties. It was a complete record, a transcript of the entire proceedings before the justice, all that he could authenticate. The-filing and approval of the appeal bond perfected the appeal. (St. L. L. & D. Rld. Co. v. Wilder, 17 Kas. 243; Comp. Laws 1879, p. 720, § 122.) Whether the justice filed the transcript with the clerk of the district court before the 26th of March, or within the twenty days prescribed by statute, is immaterial: the appeal was perfected, and there was a case pending. As against the admissibility of this record, counsel for defendant in error say:
“It neither proved that an action was pending, nor that a judgment was in force. It simply showed that a long time previous a case had been tried between the same parties, and dismissed, and that White appealed from the order of dismissal, since which one or more regular terms had elapsed. (Dass. Comp. Laws, p.322, §20.) The records of the district court were the best and only evidence of the pendency or disposition of that case after it was appealed to that court; 'but they were not offered, because counsel knew they would neither show a judgment on the merits, nor a suit pending. The court would take judicial notice of the dismissal or disposition that had been made of that case in that court, and hence knew this transcript to be immaterial. (State v. Bowen, 16 Kan. 475" court="Kan." date_filed="1876-01-15" href="https://app.midpage.ai/document/state-v-bowen-7884182?utm_source=webapp" opinion_id="7884182">16 Kas. 475.)
“The offering of this transcript, under the circumstances, when the production of the records of the district court there present in the room would have shown whether the action was pending, had been dismissed without prejudice, or gone to judgment on the merits, was mere trifling. The question whether one judgment or action of this kind pending is a bar to another, is not presented by the record. The transcript offered, if it had been introduced, would not have proved either. The former judgment was vacated by the appeal, and whether another had been rendered, or the action
In reply, it may be said that the district court in the trial of one case does not take judicial notice of the proceedings in other cases, even though on its own records. They must be offered in evidence, as any other facts. We do not know that the court placed its ruling upon any such ground, for in objecting to .this evidence counsel ran through nearly the entire catalogue of possible objections to the admission of testimony, and nothing indicates upon what ground the decision was placed. Even if the record of the district court showed no action in respect to that case, or even failed to show the existence of the case, it would not follow that the action -was not pending. The appeal was perfected. There was a case in existence, and no omission or neglect of the justice could destroy it. The plaintiff might dismiss it, but the records should show such a dismissal. His neglect would not dismiss or abate it. Cases once legally commenced continue until some affirmative action is shown discontinuing them. After the appeal is perfected, the dismissal or other disposition of the case should appear on the records of the district court. Counsel offered the entire transcript of the case before the justice. That disclosed affirmatively the continued existence of the action. Whether, if that had been admitted, he could or would have followed it up by the records of the district court showing action in the case there and continuance from term to term, we can only conjecture. It was useless to offer records of continuance or other action in a case, till its identity with the one on trial was shown.
It seems to us, therefore, that this was testimony which fairly tended to prove the pendency of another action between the same parties, for the same cause. If such prior action existed, it was a good defense to this. Whatever may be the force or effect of a judgment in forcible entry proceedings upon subsequent actions, the same rule obtains as to the effect of a pending action, as in other cases. A party may not be vexed by two actions at the same time, for the same thing;
Eor this error in the trial, the judgment must be reversed, and the case remanded for a new trial.