47 Kan. 70 | Kan. | 1891
Opinion by
This action was begun before a justice of the peace by James Larson against Hiram Cook, R. S. White, J. C. Vassar, and C. G. Glenn. Service was never had on Vassar. On the return-day of the summons the other defendants appeared and made a motion for a continuance, which was supported by an affidavit alleging that they could not safely proceed to trial at that time for want of material testimony which they had been unable to procure. They asked for a continuance for 15 days. The court refused to grant them a continuance for 15 days, and set the cause for trial in 10 days, over the objection and exception of the defendants. On the day to which the case had been continued the defendants did not appear, and the court rendered judgment against them for the amount of the plaintiff’s claim. Within 10 days thereafter the defendants prepared, and the court allowed and signed, a bill of exceptions, and the case was taken to the district court on a petition in error, in which it was alleged that the court had commited error in refusing the defendants a continuance for 15 days. The district court held that the justice had commited no error, and remanded the case to his court for execution of the judgment. The plaintiffs in error were not satisfied with the judgment of the district court, and bring the case here, still insisting that they were entitled to a continuance for 15 days on their application in the justice’s court, and that it was error for that court to refuse them such continuance ; and also, that the district court erred in refusing to reverse the justice for such error; and this is the only assignment of error in this court.
The defendant in error raises some preliminary questions, to which our attention is directed in his brief. It is admitted that there was no motion for a new trial in the justice’s court, and it is asserted that, because there was not, no review of the
The defendant contends that the refusal to grant a continuance cannot be reviewed here, because the bill of exceptions allowed and signed by the justice was not allowed and signed in time; that the ruling of the court refusing the continuance complained of was on the 10th day of the month, and the bill of exceptions was not signed until the 29th. The defendant seems to think the bill must be allowed and signed within 10 days from the date of the ruling complained of. But the statute says: “ The bill of exceptions may be signed and sealed at any time within 10 days from the day on which judgment is given in the action.” The judgment was rendered on the 20th day of the month, and the bill was allowed and signed on the 29tb, and was therefore within time. Were the defendants in the justice’s court entitled to a continuance on the application made there as a matter of right? We think
“Either party may have the trial adjourned without the consent of the other, for a period not exceeding 15 days, by filing an affidavit of himself, his agent or attorney, that he cannot, for want of material testimony which he has been unable to procure, safely proceed to trial.”
The defendants filed the affidavit provided for by the above section, and demanded a continuance for 15 days. We think the statute gives either party filing the affidavit the absolute right to a continuance for any number of days not exceeding 15. It vests no discretion in the court. It is mandatory. ( West v. Rice, 4 Kas. 563.)
If the defendants were entitled to a continuance for 15 days, then the refusal of the court to allow it was error; and if such refusal was error on the part of the justice’s court, then, when the matter was taken to the district court by petition in error, it was error for said court to overrule the petition in error. It is therefore recommended that the judgment of the district court be reversed, and the case sent back for new trial.
By the Court: It is so ordered.