Muscott v. Hanna

26 Kan. 770 | Kan. | 1882

The opinion of the court was delivered by

Hobton, C. J.:

A preliminary question is presented in regard to the record. Counsel for defendant in error allege that the record is incomplete; that the certificate of the judge is insufficient; and the certificate of the clerk, as made, useless. It is also urged that the court cannot consider the evidence, for the reason that it is not all before this court. The record comes to us in the form of a case-made, signed by the judge and attested by the clerk of the district court, and the seal of the court is attached thereto. It appears from the record that the case was submitted to the judge, who settled and signed the same, and therefore the attestation is in due form. No certificate of the clerk to a case-made is requisite. His attestation and seal of the court to the certificate of the judge are sufficient. The record shows that it contains all the evidence given by both parties on the trial, and we cannot approve the construction attempted to be placed upon this by counsel for defendant, by limiting this language to the testimony personally given by plaintiff and defendant. We think a reasonable construction is, that the record contains all the evidence offered on the part of plaintiff and defendant. Counsel 'refer to the statements of several witnesses in regard to the value of the services of plaintiff, and urge that because the record states that their evidence tended to prove the services were worth from $20 to $35, that the record shows the evidence taken is not fully presented. The settling and signing of a case-made is the duty of the judge, and therefore the statements set forth and contained in a case-made are conclusive upon us. After the case-made is settled and signed, it is no longer the mere writing or language of counsel, but is the record made by the judge. The statute permits the ease to contain so much of the proceedings and evidence as may be necessary to present the errors complained of, and where several witnesses testified as to the value of services and there is no contradictory evidence, it would seem unnecessary to set forth in detail all their testimony; but a general statement as to its purport would be sufficient, when there is no error alleged concerning its admission. This course, it seems, was adopted in this case, and as the substance of such testimony is set forth, we do not think it contradicts the statement in the record, that all of the evidence is embraced therein.

The defendant in error testified on the trial that one William J. Fuller, who was employed to defend him in one of the eases for which plaintiff claimed compensation for services as an attorney at law, said to him, referring to the plaintiff and to a letter written by the latter on June 19, 1879, inclosing his claim for professional services: “That is another of the old man’s tricks; he is all the while interfering in my business matters; I will attend to this matter.” This evidence was objected to by plaintiff as incompetent, irrelevant, and immaterial. The objection was overruled by the court, and exception noted. The testimony of defendant concerning the statements of Fuller to him was mere hearsay testimony, and the court erred in admitting it. The only question upon this matter is, whether this testimony, which was erroneously received, may have influenced the jury in the findings or verdict. The evidence of the parties to the suit was very conflicting, and the examination of the whole record convinces us that such testimony may have influenced the jury, and therefore we cannot consider the error immaterial. (Kansas Pacific Railway Co. v. Pointer, 9 Kas. 620; Gilleland v. Schuyler, 9 id. 569.)

"Various other questions are raised, but as a new trial must be had, we do not think it necessary to comment upon them. The law as to an implied contract in regard to services of the character sued for, is clearly and fully declared in Muscott v. Stubbs, 24 Kas. 520.

The judgment of the court below is reversed, and a new trial ordered.

All the Justices concurring.