25 Kan. 208 | Kan. | 1881
The opinion of the court was delivered by
This is an action brought by Hammond against the railroad company, to recover the value of certain stock alleged to have been killed by the plaintiff in error in the operation of its railroad. The suit was commenced before a justice of the peace,, and from a judgment there rendered against it the railroad company, on November 12,1880, appealed to the district court of said county. The district court convened on December .20, 1880, and this case was set for trial December 28, 1880. On December 24, the railroad company filed a written motion to dismiss its appeal. On the same day this motion was argued and submitted. On the 27th, the court overruled the motion to dismiss, and the case subsequently went to trial and judgment.
Without noticing any further matters in the record, we are clearly of opinion that the court erred in overruling this motion. A party who takes an appeal can withdraw it at any ' time before the commencement of the trial, and probably at
The judgment will be reversed, and the case remanded with instructions to sustain appellant’s motion to dismiss the appeal. All costs since such motion will be taxed against the-appellee.