Harrison v. McCabe

63 P. 277 | Kan. Ct. App. | 1901

The opinion of the court was delivered by

Wells, J.:

This is a proceeding" originally instituted in the district court of Shawnee county to compel A. J. McOabe, judge, and E. L. Good, clerk, of the court of Topeka, to certify to said district court for trial the case of John V. Abrahams v. T. W. Harrison, then in judgment in said court of Topeka. Upon the issues therein formulated a trial was had and the peremptory writ denied. This judgment is brought here for review.

John V. Abrahams, as assignee of Margaret A. Shaffer, brought suit in the city court of Topeka against T.-W. Harrison for the use and occupation of certain real estate in said county. Harrison attempted to-make one Harvey Henderson, executor, and others parties to said suit, but his motion therefor was denied, and the case was tried and judgment rendered in favor of John V. Abrahams and against T. W. Harrison. From the judgment so rendered an appeal was sought to be taken. Upon the forenoon of the last day upon which an appeal bond could be filed Harrison presented to the judge and clerk, who were then engaged in other business, what purported to be an appeal bond in the case, and they, without examining it further than to see that the amount was sufficient and the security good, signed their names to the approval thereof. In the afternoon of the same day they examined the bond more fully, and found that it purported to be an appeal from a judgment rendered by said court against T. W. Harrison and Harvey Henderson, executor. Harrison was notified that the bond was defective and was requested to file a correct bond, which he declined to do, and threatened mandamus proceedings if the appeal was not allowed on the bond already filed, and thereafter this proceeding was instituted.

It does not seem to us that the plaintiff in error has any just ground for complaint. The bond he filed did not purport to be an effort to appeal from the judgment rendered against him in the case pending. He was given ample opportunity to save his appeal if he desired to do so, but this he refused. It is quite probable that, if his attention had not been called to the error and no opportunity had been given him to rectify it, the court would have allowed a new bond to be filed and the appeal to proceed; but after the opportunity had been offered and refused in the court charged with the duty of seeing that the provisions of the statute were substantially complied with, he stood squarely upon the sufficiency of the bond relied on and must stand or fall with that alone.

The judgment of the district court is affirmed.