28 Kan. 436 | Kan. | 1882
The opinion of the court was delivered by
The matter complained of in this case is, the refusal of the district court to fix a time for the settlement of a case-made. The facts are as follows: On the 25th day of May, 1881, defendant in error obtained a judgment in the district court of Franklin county for the recovery of the possession of certain real estate. May 26, 1881; a motion for a new trial was made and overruled, and sixty days were given in w'hich to make a casa On July 21, the case-made was duly served. On July 25, amendments were suggested. On September 27, plaintiffs in error applied to the court for an order directing the service of notice of the time at which the case should be presented for settlement. The court overruled this application, and did so by reason of a rule of practice adopted by the district court of that district on March 12, 1877, and ever since in full force, which rule reads as follows :
“Rule 25. Whenever a party shall have duly made and served a case, and the opposite party shall have served amendments thereto, the party preparing the same shall notice the same for settlement within ten days after the service of such amendments, or he shall be deemed to have abandoned his case, and the same will not thereafter be settled or allowed.”
■ As more than two months intervened between the service of amendments and this application to the court, if this rule is valid and applicable obviously there was no error in the decision of the court. Counsel challenge both its validity and its application. They claim that as by § 725 of the code express authority is given to the judges of the supreme court
Again, § 549 in terms authorizes the court to direct notice to be given of the time at which a case is to be presented for settlement, and if the court has power to make a special order in each case, it of course has the power to make a general order applicable to all cases. We conclude therefore that the rule was valid. It is also applicable to the case at bar. Counsel argue that the rule only applies to cases made under § 548 — cases in which the time for making the cáse is not ex
Again, counsel seek to evade the force of this rule by a showing of conduct on the part of opposing counsel, such as they claim estopped them from relying on this rule. It appears from the affidavit of one of the attorneys, that at the time the case-made was served, John W. Deford, counsel for defendant in error, stated that he would necessarily have to go to Colorado, and if the suggestions of amendment which he should make were not satisfactory, that there might be some delay in the time of settlement; that he (Deford) expected to go to New York city after returning from Colorado, but would be present at the September court of Franklin county, and that he was anxious to settle the case after his return from Colorado, and before going to New York city. Further, that upon the receipt of the suggestions of amendment, plaintiff’s counsel wrote to said Deford stating that the amendments were not satisfactory, and requesting him to fix the time at which the parties should appear before the judge, to which said Deford replied by postal, that he would let them know in a day or two upon what day he could go before the judge; that they relied upon his statement, and expected said Deford to name the time until a few days before this application, when they were informed by J. F. Maxwell, Fsq., that said Deford had been discharged from further service in the case. The postal sent by plaintiff’s counsel to said Deford contained this language: “When shall we meet you before the
Another rule of practice in said district court, adopted at the same time as the one heretofore cited, was read in evidence: “Rule 7. Admissions or agreements about proceedings in an action will not be enforced unless reduced to writing, and signed by the parties or their attorneys, and filed; or unless the same be made in open court at the time the court is required to act upon them.”
We need add nothing to what has already been said as to the power of the court to make a rule of this kind, or as to its validity. Obviously the rule was not complied with. No stipulation in5 writing was signed and filed, nor does it appear even that the minds of the respective counsel ever came to an actual agreement. The plaintiffs asked the defendant to name the time, but suggested a postponement to September, and the defendant, acknowledging the receipt, simply said he would inform them in a day or two when he could attend before the trial judge. It would seem from the conversation had at the time the case-made was served, that defendant was opposed to a delay till September, and preferred to have it settled sometime intermediate his trip to Colorado and that to New York. But with all that was said or written, it is evident that the parties never came to any agreement; and while perhaps there was that in the letter of defendant’s attorney which might tend to induce delay upon the part of the plaintiffs, and something in the conduct of the case on the part of the defendant which deserves criticism, yet there is not enough to justify us in holding that the trial court erred in adhering strictly to its rules. We appreciate what is said by counsel as to the duty of discountenancing trickery and deceit and of upholding professional honor, and we wish the case had developed a different course of conduct on the part of the defendant; but it is also our duty to see that the value of established rules be not destroyed in
