Missouri, Kansas & Texas Railway Co. v. Greenwood

1 Kan. App. 330 | Kan. Ct. App. | 1895

The opinion of the court was delivered by

Johnson, P. J. :

The only question raised by the motion to. dismiss this case is as to the matter of notice of tlie time and place of signing and settling tlie case-made. The statute in relation to proceedings to review a judgment o'f the district court 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 matters in the action as may be necessary to present the errors complained of to the supreme court.

“The case so made, or a copy thereof, shall, within three days after the judgment or order is entered, be served upon the opposite party or his attorney, who may within three days thereafter suggest amendments thereto in writing and present the same to the party making the case or his attorney. The case and amendments shall be submitted to the judge, who shall settle and sign the same.”

“The court or judge may, upon good cause shown, extend the time for making a case and the time within which the case may be served; and may also direct notice to be given of the time when a case may be presented for settlement after the same has been made and served and amendments suggested, which when so made and presented shall be settled, certified and signed by the judge who tried the cause ; and the case so settled and made shall thereupon be filed with the papers in the cause.” (Gen. Stat. of 1889,'¶ ¶4648, 4649, 4650.)

It then becomes the record of the case for review in the higher court, and the reviewing court cannot consider or notice any matter not contained in the record. The case-made should contain so much of the proceedings had as are necessary to present to the court the error complained of from the commencement of the case up to and including the signing, settlement and certificate of the judge. The case-made in this case contains a complete statement of all the proceedings from the filing of the petition to the presentment of the case to the judge for signing and settlement thereof ; but it fails to show that any notice was given to the plaintiff below,' or her attorney, of the time at which the case -would be presented to- the judge for signing and settlement; and the judge, in his certificate, states- that “neither the plaintiff nor her attorney -was present when the case-made was presented on February 20, 1893, nor at any time since, and that no notice was given to either of them of the settlement of said case, as far as has been shown to me, except such as may be gathered or inferred from the letter of Mr. Byrne, plaintiff’s attorney, to me,” which letter the judge attaches to his certificate marked “A,” and makes it a part of the case-made. The question then arises whether the letter shows such notice as -would authorize the signing and settlement of the case in the absence of the plaintiff below, or her attorney. After reciting certain matters, the letter says: “Now, in relation to this matter, I do not wish to give away any legal rights I may have on the question of notice of the time of settlement, or to assist the plaintiff in error in any oversight they may have made.” This is an express refusal to waive the notice of the time of settlement. The letter shows plainly that the attorney for plaintiff below had been informed that the case-made -was in the hands of the judge for signing and settlement, but he is not informed as to -when the matter will be taken for disposition by the judge.

We do not think this letter contains such statements as the judge could infer that notice had been given such as -would authorize the judge to sign and settle the case-made in the absence of the defendant' in error or her attorney. The reason that notice is required to be given to the adverse party, is that he may be present and have such amendments inserted in the case-made as he may have suggested, and also to object to the signing of the case as prepared by the other party. The attorney for the defendant in error had been duly served with the case-made, and had the case in his possession for eight or nine days, and returned it to the plaintiff in error without the suggestion of any amendments thereto ; but he stated in his letter to the judge that he thought he had filed an amended petition upon which the case was tried, and the case-made did not contain it, and he thought the record would show it, and it could be inserted when the case ivas settled; and that was the reason that he did not make out and suggest any amendments in writing. The attorneys for each party filed affidavit,s with the court in relation to notice and verbal agreements between them in relation to the signing and settlement of the case-made ; but we cannot consider evidence outside of the record in relation to agreements or verbal notice of signing and settlement of the case.

We are satisfied that the attorney for plaintiff in error was in good faith attempting to make and present a fair and honest case-made, and that he relied upon the promises and statements of the attorney for the defendant in error that no advantage would be taken in the matter of signing and settlement of the case ; that all formalities in relation thereto would be waived; that he would appear at any time and waive all such matters of time or notice ; but ‘ in this he seems to have been deceived. It may not have been professional courtesy in an attorney to violate his verbal promises or agreements and then take advantage of the confidence reposed in his agreement, but then, it was the duty of the plaintiff in error to see that his case was made in all respects according to filie requirements of the statute, and that it was certified within the time allowed by the order of the court; and it was the duty of the attorney for defendant in error to suggest amendments in writing and serve them on the attorney for plaintiff in error ; and, when there are no amendments suggested in writing and the case is returned to the attorney for plaintiff in error, then, if he desires the case signed and settled, it is his duty to see to it that the defendant is notified, or else procure his waiver in writing, so that the notice or waiver of notice may be made a part of the record. He should not rely upon the unreliable statements of his adversary.

In the case of Weeks v. Medler, 18 Kas. 428, Horton, C. J., delivering the opinion of the court, says :

“The mere signature of the district judge to a paper, a copy of which is presented to this court as a case-made, is not a sufficient showing that the prerequisites to make the case a valid one were complied with. The jurisdiction of the judge to settle the case is a special and limited jurisdiction, which only arises at the times and under the circumstances specified in the law; ' and, in the absence of any appearance of the opposite party or a waiver of amendments, it should appear from the record that the case had been duly served, and that amendments had been suggested or waived or such opposing party had notice of the time and place of the settling of the case. In other words, the record should show affirmatively the previous steps necessary to the settlement of the case, in the absence of the appearance or waiver thereof, by the opposing party.”

This case-made, having been signed and settled in the absence of the plaintiff below, or her attorney, and no notice of the time and place of signing and settling the same having been given them, the case will be dismissed at the cost of plaintiff in error.

All the Judges concurring.