Hopkins v. Hopkins

47 Kan. 103 | Kan. | 1891

The opinion of the court was delivered by

Johnston, J.:

In this action Emaline Hopkins obtained a judgment against S. D. Hopkins for $700, which judgment was declared a lien against certain real estate, the legal title of which was in S. D. Hopkins. He complains, and his proceeding in this court is based on a transcript of the record. The errors assigned are mainly those arising only upon the evidence and the rulings during the trial. Although what purports to be the evidence is attached to the petition in error, and certified to by the official stenographer and the clerk of the district court as being full and correct, it is not preserved either by a bill of exceptions or a case-made. For this reason, neither the evidence nor the proceedings of the trial which form no part of the record can be considered.

It is urged that the court erred in permitting plaintiff below to file a reply out of time. It appears a reply was filed a few days beyond the time allowed by the code, and the court on application struck the reply from the files, but at once set aside the default and authorized the filing of another reply imstanter. The trial did not occur, however, until about one year after the setting aside of the default and .the filing of the reply, and hence the plaintiff in error could not have suffered any prejudice by the ruling. The matter of setting aside defaults and permitting pleadings to be filed out of time largely rests in the discretion of the trial court, and its rulings thereon will not be disturbed unless there is a clear abuse of discretion. (Spratley v. Insurance Co., 5 Kas. 155.) There was no such abuse in this case, and there are no errors apparent on the face of the record.

Judgment affirmed.

All the Justices concurring.