Davis v. Finney

37 Kan. 165 | Kan. | 1887

The opinion of the court was delivered by

Horton, C. J.:

It is claimed that the district court erred in overruling the motion to set aside the report of the referee and grant a new trial, for the following reasons: (1) That if the Allen county district court for the November term, 1881, expired November 18, (and that, it is urged, was the plain intent and purpose of the stipulation,) then the filing of the report by the referee subsequently was a mere nullity, being unauthorized and therefore void; (2) That if the Allen county district court extended to and included January 30, 1885, any attempt on the part of the court to confirm the report or render judgment after that date, was unauthorized by the stipulation, which required not only that the report be submitted for confirmation, but also that judgment be rendered thereon, before the close of the Allen county district court; (3) That the referee, by failing to give notice to the plaintiff in error of the time when he would file his report, prevented him from having any opportunity to prepare and present a bill of exceptions.

The written stipulation of 'the parties provided that the report of the referee should be made prior to the expiration of the November term of the district court of Allen county for 1884. The court continued to January 30, 1885. The report was made prior to that day. The judgment was entered in the journal of the district court of Woodson county as of October 21, 1884. The stipulation, therefore, in this respect, was fully complied with. The adjournment of the November term of the court for 1884, to January 5, 1885, was a continuation of the November term to that time, and such term did not expire until January 30, 1885. We can find no statement in the record that all of the evidence presented upon the hearing is embraced therein, and therefore we must presume -that the findings of the trial court were made upon sufficient testimony.

Under the stipulation of the parties, the application for confirmation was heard in vacation, before the judge at Iola. It was supposed that, by having the judgment entered as if rendered at the October term of the district court for Wood-son county for 1884, no objection would be made on account of its rendition in vacation. Plaintiff below complied with his part of the stipulation, and the judgment rendered in vacation was set aside upon the application of the defendant below. He is now complaining, and alleges that because the judgment was not rendered before the expiration of the Allen county court, the court had no power to render the judgment at any subsequent time. Even if the part of the stipulation providing for the rendering of the judgment in vacation is invalid, still the district court had the power to hear and dispose of the report of the referee, in term-time. The report of the referee was confirmed at the March term, 1885, of the court for Woodson county, and judgment rendered at that term. This was the first term of the district court for Woodson county, after the filing of the stipulation for the reference of the case. The terms of the district court for Woodson county commence as follows: The first Monday in March, the first Monday in June, and the second Monday in October, in each year.

We cannot perceive that the failure of the referee to give notice to the parties of the time he would file his report was in this case in any way prejudicial. On December 16, 1884, Messrs. Pickett & Smith, then attorneys for the plaintiff in error, accepted notice of the hearing of the motion confirm to the report of the referee before the district judge, on December 19,1884; but the report of the referee was not filed with the clerk of the district court of Woodson county until December 20,1884. Undoubtedly Messrs. Pickett & Smith could have examined the report before December 19, and prepared a bill of exceptions therefrom. Messrs. Knight & Foust were notified by the referee, about December 10, 1884, of the purport of his report; and that the same, with the evidence, exhibits, etc., had been forwarded to the district judge. This was ten days before the report of the referee was filed, and several days before the hearing of the report. The district judge informed these attorneys that he had the report, papers, etc., at Erie, where they could see them; therefore Messrs. Knight & Foust had several days in which to go to Erie, and prepare a bill of exceptions.

There is no showing in the record that Knight & Foust appeared before the district judge on December 19, 1884, at the hour named in the notice for the hearing of the motion, to confirm the report. The record recites that the plaintiff below “'appeared by H. D. Dickson, his attorney, the defendant below not appearing.” The record further recites, that the defendant below “had been duly notified of the time and place of the hearing of the motion.” It would seem that Knight & Foust did not reach Erie on December 19th until the hearing upon the report of the referee had been acted upon. Again, when the motion to set aside the report of the referee was overruled, on March 11, 1885, the attorneys for plaintiff in error might have made their motion for a new reference of the case. This was not done.

There are other matters presented in the briefs, but upon the record before us we think comment not necessary.

'The judgment of the district court will be affirmed.

All the Justices concurring.