Gallaher v. Southwood

1 Kan. 143 | Kan. | 1862

By the^Court,

Ewing, C. J.

This action was brought in March, 1859, in the district court sitting in Bourbon county, for the trial of causes arising under the laws of the territory, by defendant in error, against plaintiffs in error, by petition in proper form, on a promissory note executed and delivered by G-allaher and Crawford to one Charles P. Bullock, and by him indorsed to Southwood. The note is dated at Fort Scott, Kansas, August 7th, 1857, is for six hundred dollars, payable six months after date, with ten per cent, interest per annum, and on it are indorsed payments of one hundred and fifty-seven dollars and fifty cents, January 25th, 1858, and fifty-five dollars, February 6th, 1858.

The answer sets up that the note was executed and delivered to Bullock in consideration of a conveyance by him to Gallaher of a “ claim, piece, or parcel of land,” in said county of Bourbon, being the northeast quarter of section thirty-one, township twenty-five, and that said Bullock, at the time of such conveyance, and ever after, had no title or interest in said land, and that said note was indorsed and delivered to Southward after due. A deed of conveyance of the land described, from James M. Powell to Bullock, and one from Bullock to Gallaher, are attached to and declared part of the answer.

On the 14th of October, 1859, the case was tried by the court, and Gallaher and Crawford ftrand indebted to South-wood in the sum of five hundred and seventy-two dollars and twelve cents and costs. Whereupon judgment was rendered and execution awarded.

At the next term of the Court, prescribed by law, a bill of exceptions was presented, setting forth the conclusions of fact found by the court, and the ruling thereon, at the former term, and concluding as follows:

“ To which ruling of the said court the said defendants, by their said counsel, excepts, and prays the court to sign and seal this their bill of exceptions, and order the same to be made part of the record in the case, which is accordingly done, this 14th day of May, 1860.

“ [seal.] J. Williams, Judge.”

To the bill of exceptions is appended the following note:

“ I hereby certify, that subsequent to the trial of this cause, a bill of exceptions was sent to me at Wyandott court which I brought to Fort Scott, and as I now think was submitted to the attorney of the plaintiff for examination, since which time it cannot be found. I also think that at the time of the trial of the cause, it was agreed by the attorneys of the parties that the attorneys for the defendants might file their bill of exceptions within thirty days after the day of the trial, May 14th, 1860. J. Williams,

“ [seal.] Judge.

“ C. P. Bullock, Esq., attorney.for plaintiff in this suit, now objects to the reception and filing of this bill of exceptions.”

The assignments of error in the petition filed here are:

First. “ That the New York Indian lands (so called) being an Indian reservation until the selections were made therein by said New York Indians, were not public lands within the meaning of the laws of the United States, concerning the sale or pre-emption of public lands, and therefore the consideration of said note wholly failed.

Second. “ That as the amount which had already been paid on said note far exceeded the value of the improvements on the land in question, the remainder as balance of moneys due on said note was wholly without consideration, &c.”

The errors assigned are of law, arising from the facts proved on the trial. To avail themselves of the alleged errors, defendants below should have excepted when the decision was rendered, and reduced their exceptions to writing, and presented them for allowance and signature during the term. Neglect of either step were fatal, and, so far as the record shows, they neglected both. Aside from the bill of exceptions, the record shows no special finding of facts by the court, and no note of exceptions to the decision of questions of law arising from them. The bill itself represents the exception as being taken and the bill presented at the date of the signing, which wras at the regular term next after that of the trial — too late cither to except or to present the bill for signature. (Code 1859, §§ 801, 304; 6 Ohio S. R. 12; 10 id. 228; 1 id. 409.)

The explanatory note does not relieve the difficulty. It shows the last bill itself was presented after the trial term, and while the Judge was holding a term prescribed by law in another county. The Judge had no power, if consent of counsel had in fact been given, to extend the time for reducing the exceptions to waiting beyond the term, for the law forbids it. And the parties jvould not be concluded, provided such unauthorized extension appeared of record.

The prohibition in section three hundred and one of the code is in accordance with the settled practice of courts, arising from statutes or usage, from time immemorial. If parties and judges were allowed to postpone the preparation and approval of bills of exceptions beyond the trial term, and until the testimony of witnesses and the rulings and verbal instructions of the court had begun to fade from their memories, the task of preparing and agreeing upon full and accurate bills of exception, with the best efforts of judges and counsel, would be always difficult and often impracticable.

The bill sent up, with its explanatory foot note stating impressions of the judge as to agreements, and as to submission of the first bill to Southwood’s counsel, and its loss, accompanied by protests of counsel against filing the last bill, strongly illustrates the evils in practice against which the statute guards. Had we the power and were we to entertain the case on this record, and suffer its defects to be patched with excuses, we would relax a rule of the code already sufficiently lenient which good practice requires to be strictly enforced.

Ordered by the court that the case be dismissed at the costs of plaintiffs in error and execution awarded thereon.