Missouri & Kansas Transportation Co. v. Palmer, 19 Kan. 471

Missouri & Kansas Transportation Co. v. Palmer

19 Kan. 471 | Kan. | 1878

The opinion of the court was delivered by

Horton, C. J.:

*4721 what a is, ’ An“pártofetije Bill of exceptions. *473'not aided by the record. *471In this proceeding, an attempt is made to bring here for review certain alleged erroneous rulings of the district court of Cherokee county in receiving and rejecting evidence, and also in granting and refusing instructions on the trial of the action in that court. A jury was impanneled in the case, a general verdict given, and no special findings *472of fact were returned by the court, or jury. The evidence and instructions are preserved in a case-made; but neither the pleadings, verdict, judgment, motion for a new trial, nor any of the journal entries, are incorporated in it, referi’ed to, or in any way made a part thereof. To it however, as presented to us, is attached a certified copy of all these records and papei’S. The case-made was presented, signed, and filed beyond the trial term, and therefore cannot be treated as a bill of exceptions. It is now challenged; and the question is faixdy presented by the record, whether a case-made can be supplemented and completed by having added or attached to it certified copies of the records of the court below not embodied therein as a part of the same. Must the case-made, when settled and signed, be complete in itself, so as to fully present the errors complained of? Sec. 547 of the civil code provides, “ that a party desiring to have any judgment or order of the district court, or a judge thereof, reversed by the supreme court, may make a case, containing a statement of so much of the proceedings and evidence, or other ‘mattei’s in the action, as may be necessary to present the errors complained of to the supreme court.” And § 1, laws of 1877, p. 243, further provides, that “in all actions hereafter instituted by petition in error in the supreme court, the plaintiff in error shall attach the original case-made, filed in the court below, or a certified transcript of the record of said court.” A case-made is no part of the record of the district court. Section 548 of the code provides that after a case-made is duly settled,. signed, and attested, it shall be filed with the papers in the case; but it is nowhere provided that it shall become a part of the record. The provision as to a bill of exceptions is otherwise. Sec. 303 of the code px’escribes that after a bill of exceptions is allowed and signed it shall be filed with the pleadings as a part of the record, but not spread at large upon the journal. If a proceeding is prosecuted in this court to reverse an order or judgment of the district court or judge, where the decision objected to *473is entered on the record, and the grounds of objection appear in the entry, and the exceptions are properly noted, or where the decision is not contained in the record, or the grounds of objection do not sufficiently appear in the entry but are fully preserved in a bill of exceptions filed and made a part of the record, then a certified transcript of the record of the court below is to be attached to and filed with the petition in error. But where such proceeding is founded on a case-made, the original case-made is to be filed with , ° the petition m error; and there is no authority to attach or add to it any certified transcript, or the copies of any papers. It cannot be thus perfected. Not only does the statute fail to make a case-made a part of the record, but the section of the law of 1877, referred to, authorizes it to be taken from the files of the district court, and when thus removed from that jurisdiction, it is in no way subject to its control; and even a copy thereof cannot be obtained officially from its clerk in a transcript of the case, or otherwise. This is an additional argument showing that it is not regarded as a part of the records of the district court.

3. issues must be shown. Aside from the specific manner of bringing cases here on error, it is evident from the language used in the code for making a case, that it was intended to have the case itself, in connection with the petition in error, present all that is necessary to be considered by the supreme court in reviewing alleged errors of the inferior court, when such supposed errors are sought to be reviewed on a case-made, The ease_ma(je must contain “a statement of so much of the proceedings and evidence, or other matters in the action, as may be necessary to present the errors complained of to the supreme court.” The language is comprehensive, and cannot be dwarfed to mean simply a bill of exceptions taken beyond the term, and settled in the presence of the parties. One object of a case-made was to reduce the size of the record, and thereby the costs of a review, by leaving out much of the immaterial matter that always incumbers a record brought to the court by a certified tran*474script. Unfortunately this purpose is not much appreciated, judging from the records presented to us. Upon an examination of the case-made we find no statement therein of so much of the proceedings as is necessary to present the errors complained of. Certain evidence is stated as given and attempted to be given, ,and also certain instructions are set forth; but in the absence of the pleadings, or any statement of the issues between the parties, we cannot determine what evidence was material, or competent, or what instructions were relevant, or proper. We cannot go outside of the case-made and search for these matters in a transcript; nor can we consider any orders, motions, or proceedings dehors the case settléd and signed. It should be complete without the necessity of support aliunde. The plaintiff in error has not sufficiently presented its case to obtain a review of the rulings of the district court; or rather, in its attempt to combine a case-made with a transcript of the record, it has pursued a practice unauthorized by the code, has failed to obtain any benefit from either, and has fallen between the two.

No error appearing in the case-made, the judgment of the court below will be affirmed.

All the Justices concurring.