39 Kan. 265 | Kan. | 1888
On April 22, 1886, a judgment was rendered in the district court of Atchison county in an action of ejectment, in favor of Peter C. Conde, the plaintiff, and against William F. Kuhnert, the defendant. On January 23, 1887, Conde died. On April 2, 1887, a petition in error and case were filed by W. D. Webb as attorney for Kuhnert, in the office of the clerk of the supreme court, making Kuhnert the plaintiff in error, and purporting to make Peter C. Conde the defendant in error; and praying for a reversal of said judgment. Webb was the attorney of record for Kuhnert. L. F. Bird, who had formerly been an attorney in the case for Conde, waived the issuance of summons and the service thereof, and no summons was ever issued in the case. On October 11,1887, a notice was served by Samuel Woodworth, the attorney and next friend of the representatives and successors of Conde, upon Kuhnert’s attorney of record, Webb, of an application to revive the judgment aforesaid, in the district court, in the names of the representatives and successors of Conde. This notice gave the names of the representatives and successors of Conde, and was signed by Bird as attorney for plaintiff. Webb, as the attorney of Kuhnert, accepted service of the notice and consented to the revivor. Afterward, and on January 11,1888, the judgment was revived by order of the judge of the district court. On April 3,1888, Woodworth and Bird, as the representatives and attorneys of the representatives and successors of Conde, appeared specially in this court, and moved that the case be dismissed. It will be observed that at the time of Conde’s death the case was wholly and entirely in the district court, and there is no pretense that anything connected therewith was in the supreme court. No attempt had yet been made to bring the case or anything connected therewith to the supreme court. Hence no revivor could at that time have been had, either of the action or of the judgment, except in the district court; and no revivor was attempted in that court or in any other court within one year after the time of the
The case has never legally been in this court, and it will be dismissed.