34 Kan. 13 | Kan. | 1885
Lead Opinion
The opinion of the court was delivered by
A. H. Miller instituted this proceeding in error to reverse a judgment of the district court affirming an order made by a justice of the peace. It appears that C. W. Noyes sued A. H. Miller before a justice of the peace of Doniphan county, to recover upon a promissory note, and at the
After hearing testimony offered in behalf of both parties upon the ground first stated, the justice of the peace denied the motion. An exception to this ruling was taken and allowed, and the defendant prosecuted his petition in error in the district court, to review and reverse the order of the justice refusing to vacate the garnishment process. It was there held, as we understand the plaintiff in error, that error does not lie in such a case to the district court, and it was ordered that the judgment of the justice of the peace be affirmed and executed.
“A judgment rendered, or final order made, by a justice of the peace, or any other tribunal, board or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court.”
In this case the plaintiff in error did not complain of or attempt to bring up for review the final judgment in the action. He sought to have reviewed only the decision of the justice of the peace denying the motion to vacate and discharge the garnishment process.* That ruling is neither a j udgment nor a final order, and hence was not reviewable by a proceeding in error. (Mull v. Jones, 33 Kas. 112; Board of Education v. Scoville, 13 id. 32; Phelps v. Railroad Co., 28 id. 165; Hottenstein v. Conrad, 5 id. 249; K. R. M. Co. v. A. T. & S. F. Rld. Co., 31 id. 90.)
The district court was therefore without jurisdiction to entertain the proceeding in error, and should have dismissed it. However, instead of dismissing the proceeding, it appears from the record that the court affirmed the judgment of the justice of the peace, and ordered it to be executed, and to this extent there was error.
The judgment of the district court will be reversed, and the cause remanded with the direction that the proceeding in error be dismissed.
Dissenting Opinion
I dissent from the judgment taxing costs against the defendant in error. I think the trial court virtually decided the case upon the merits, as this court has, but technically erred in affirming the judgment of the justice of the peace, instead of dismissing the proceeding in ei’ror. And therefore I think the error was immaterial, and one not prejudicial to the rights of plaintiff in error.