26 Kan. 720 | Kan. | 1882
The opinion of the court was delivered by
In this case a judgment was rendered by a justice of the peace in favor of W. J. Caruthers, who was plaintiff in that court, and against J. A. Dowell, who was defendant, for the sum of $77 and costs. No attempt was made to appeal the case to the district court until after the tenth day (allowed by law for the taking of appeals) had expired; but on the eleventh day after the judgment was rendered, the defendant filed an undertaking with the justice, for the purpose of taking an appeal. All the papers in the case were afterward filed in the district court, and the case was placed on the trial docket of that court for the next term, which was to be held in September, 1878. On September 20, 1878, the plaintiff, by his attorneys, Killey & May, filed a prseeipe for witnesses in the case, and these witnesses were subpenaed upon a subpena issued on such prsecipe. Afterward the case was continued on affidavit of the defendant, “the plaintiff appearing by his attorneys.” The entry of the continuance on the trial docket is as follows: “Cont’d on application of defendant and at deft/s costs for the term, for which let ex. issue.” No motion was made to dismiss the appeal at this term, nor until the February term held in 1879. On February 8, 1879, the plaintiff filed a prsecipe for witnesses, who attended at that term. On the trial docket of that term the following entry was made: “Jury waived by
The defendant in error, plaintiff below, now moves to dismiss the case from this court, upon the ground that the plaintiff’s bill of exceptions made and allowed in the district court and brought to this court is only a skeleton bill of exceptions, and that it does not contain all the matters and things which have since been inserted therein. To sustain his motion, the defendant in error files a certified copy of the original bill of exceptions, which shows that the original bill of exceptions is in fact just what the defendant in error claims that it is; and he also files an affidavit of the clerk of the district court, showing that the words “the plaintiff appearing by his attorneys,” above quoted and italicised, were not in the original bill of exceptions, but were written therein a long time after the same was allowed and signed by the judge of the district court, and not in his presence, and after the-court had adjourned.
With the views that we entertain of this case, we do not think that it is necessary to decide this motion; and therefore we shall decide the case upon its merits.
We suppose that docket entries may be considered as records until the same are extended on the journals. (1 Gr. Ev., § 508, note 3; Wharton’s Cr. Ev., §§ 604, 605, and notes; 2 Wharton’s Ev., §§ 825, 826, and notes.) And we think that even the skeleton bill of exceptions shows that the plaintiff made a voluntary appearance in the district court. We also suppose that even the plaintiff in error will admit that his appeal is void, unless the defendant in error made it valid by such voluntary appearance; for such is undoubtedly the law.
“ Where a party against whom a decree was made in chancery undertook to appeal therefrom, but failed to perfect his appeal within the time limited by law, it was held that no laches of the opposite party in moving to dismiss could preclude his right to have the case dismissed on that ground.”
The court in that case held that the filing of a bond is a jurisdictional act, and that if no bond is filed, no jurisdiction is conferred upon the appellate court. This, we think, is generally true. Of course there are exceptions to this rule. If the plaintiff in this case had gone to trial without making any motion to dismiss the appeal, and had taken the chances of a finding or verdict in his favor, we do not think that he could then have moved to dismiss the appeal; and he might also by other acts have waived his right to make any such motion ; but we do not think that he waived his right to make the motion, or that he estopped himself from making the motion, by merely making a voluntary appearance in the court. By making a voluntary appearance in the court he simply surrendered to the court jurisdiction of his person, so that the court might have made any order or rendered any judgment with reference to him which would be right under all the circumstances for the court to make or render. In all such cases, before the appellee makes an appearance in the appellate court the ease is still in the justice’s court, and the justice has ju
Not being able to say that the court below committed any error in dismissing the appellant’s appeal, the judgment of the court below will be affirmed.