21 Kan. 90 | Ark. | 1878
The opinion of the court was delivered by .
The petition in error in this case is founded upon what purports to be a case-made for the supreme court, and not upon a certified transcript of the proceedings of the court below. ' Froth this “case-made,” it appears that the judgment sought to be reversed was rendered on December 20, 1876, by Hon. Owen A. Bassett, judge of the district court in and for Douglas county. On the same day, the defendants below, plaintiffs in error, against whom the judgment was rendered, filed a motion for a new trial. These were the last proceedings had in the case before Judge Bassett, while he was judge. In January, 1877, his term of office as judge of the district court expired, and Hon. N. T. Stephens became his successor. On February 19,1877, said motion for a new .trial was heard by Judge Stephens, and was by him overruled. Judge Stephens then gave to the defendants ten days within which to make and serve a case for the supreme court. The case was properly made, and was duly served on the adverse party on February 26, 1877, and on March 21, 1877, it was settled and signed, over the objections of the adverse party, by Judge Bassett. It was never settled or signed by Judge Stephens.
The first question necessary to be considered in this case is, whether said “case-made” was properly settled or not; for if it was not properly settled, then it will not be necessary to consider any of the other questions discussed by counsel.
"We think that Judge Bassett had, no legal power or authority, at the time he settled and signed said case, to settle or sign the same. The time for him to do so had long before that time passed. The judgment was rendered December 20,1876. The time for making and serving a case to enable the supreme court to review the rulings of the district court down to the rendering of said judgment, and prior to and independent of any ruling upon the motion for a new trial, was limited by law to only three days after the rendition of the judgment. (Code, §543, as amended, Laws of 1871, p. 274.) Unless the judge of the district court for good cause shown extended the time. (Code, §549, as amended, Laws of 1870, p. 168.) The time was not extended within the three days. It was never extended by Judge Bassett, unless it should be construed that by settling and signing said case on March 21', 1877, when he was not a judge, he extended the time. And it was never extended by Judge Stephens, for his order extending the time to make a case was simply an order extending the time to make a case to review his own order overruling said motion for, a new trial. Besides, it has already been decided by this court (the writer of this opinion however dissenting) that no judge has power to extend the time for making a case after the time fixed by law, and by any order of the court or judge, has once elapsed. (The City of Great Bend v. Brinkman, not reported.) The statute under which it is supposed that a judge whose term of office has expired has power still to settle and sign a “case-made” has no application to the present case. Said statute reads as follows: “And in all cases heretofore or hereafter tried when the term of office of the trial judge shall have expired or may hereafter expire before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his term had not expired.” (Code, § 549, as amended, Laws of 1870, p. 168.) The judge’s term of office in the present case did not “expire before the time fixed for making or settling and signing a case.” The time fixed by law for making a case was within three days after the judgment was rendered, or on December 20th to 23d, 1876. No case was made within that time, and no other time was ever fixed for settling or signing any such case. But the judge’s term of office did not expire for several days after December 23, 1876. It would have been entirely proper for Judge Stephens, after he overruled said motion for a new trial, and after he fixed the time within which to make and serve the case for the supreme court to review that ruling, to have settled and signed such case himself. Such a case would have enabled this court to review Judge Stephens’s decision upon the motion for a new trial. And if Judge Stephens had himself settled and signed such á case, we could then by means of such case review every question involved in the motion for a new trial, every question raised by it. But Judge Stephens did not settle or sign the ease. We suppose it will hardly be claimed that JudgeBassett could settle and sign a case so as to give to this court the power to review Judge Stephens’s decisions. We suppose-it will hardly be claimed that Judge Bassett could settle and sign a case so as to give to this court the power to know legally what Judge Stephens’s decisions were. After Judge Bassett’s term of office had expired, he had no power to make a record of any of the proceedings of the district court, except, possibly a record of some of the proceedings that were had while he was the judge of the court. Therefore, under any circumstances, we must consider that that portion of the present case which shows that Judge Stephens overruled said’ motion for a new trial and extended the time for making a. ease, is a nullity. ■ And if we consider that portion of the-case as a nullity, and the rest of the case as valid, we must then affirm the judgment of the court below; for if we should consider the motion for a new trial as still pending- and undisposed of in the court below, »we could hardly say that any material and substantial error was committed in this-case. Errors for which a new trial may be granted are generally not available in the supreme court until after a new trial has been refused by the district court. (Nesbit v. Hines, 17 Kas. 316.) But in the present case we must consider the-whole of the case-made as a nullity, for the reasons already' given, and therefore the present case must be dismissed.