36 Kan. 370 | Kan. | 1887
The opinion of the court was delivered by
When this case was called in the district court for trial, the defendant moved to dismiss the appeal, on the ground, among others, that there was no appealable judgment rendered in the court below. This motion was overruled, and is the principal error complained of. Section 120 of the justices act reads as follows:
“In all cases, not otherwise specially provided for by law, either party may appeal from the final judgment of any justice of the peace to the district court of the county where the judgment was rendered.”
The justice made the following findings:
“The court doth find from the evidence, that defendants A. J. Morris and O. W. Butt are not indebted unto plaintiff in any sum whatever; and doth further find that defendant*373 Jacob M. Smith is indebted unto plaintiff in the sum of $60, and that the same is for work and labor.”
The only judgment rendered in the case was as follows:
“It is therefore considered and adjudged by me, R. B. Drury, justice of the peace, that the plaintiff,-William Herndon, do have and recover of and from defendant Jacob M. Smith the sum of $60, debt, and the costs of this action, taxed at $48.65.”
Undoubtedly the justice would have rendered a final judgment as to these parties, if the attorney of Herndon had made a formal request for him so to do. The omission perhaps was unintentional; but as no appeal can be taken except from a final judgment, the court erred upon the transcript before it in refusing to dismiss the alleged appeal, the unintentional omission of the justice to render judgment as between Herndon, Morris and Butt being fatal to an appeal.
The judgment of the district court will be reversed, and further proceedings will be had in accordance with the views herein expressed.