8 Kan. 143 | Kan. | 1871
The opinion of the court was delivered by
This was an action brought by defendants in error to recover a certain lot in Leavenworth. The issues were tried by the court and special findings of the facts were made, and judgment for the recovery of the lot. "Whereupon the plaintiffs in error claimed the benefit of the occupying claimant law. They were adjudged entitled thereto, and an inquiry awarded. A jury was summoned, and a return made by the jury awarding damages to plaintiffs in error. They excepted, and moved the court to set aside the assessment and valuation, which the court refused to do.
In this court five grounds of error are assigned: First, That the court erred in the conclusions of law from the facts found. Second, That the court erred in limiting the benefit of the occupying claimant law to such improvements as were made after the 28th of December, 1863. Third, In refusing to set aside the assessment made. Fourth, In refusing to settle 'and sign the case made and presented. Fifth, In refusing so to do for the reasons stated by the judge. Of these alleged errors in their order.
The statute makes no provision for a notice; still, as this is a separate proceeding, there can be no doubt that the party not demanding the assessment ought to have and is entitled to a reasonable notice that he may attend, and call the attention of the jury to the improvements made, and take such other action to protect his interests as the nature of the proceedings admit. A notice to the attorney of record is sufficient; for while it is a separate proceeding from the original suit, it grows out of it, and is so far dependent on it that no new process is necessary. Patterson v. Prather, 11 Ohio, 35. In this case notice was given to one of the attorneys of plaintiff in error the day before the assessment was made; and it does not appear that he made any objection to the sufficiency of the notice, or that the time was too short. It does appear by his affidavit made afterwards, that the general management of the case had been in the hands of his partner, who had the particular knowledge necessary to advise and direct as to this particular inquiry. This partner was informed of the proceedings on the morning of the day the inquiry as to the value of the improvements was made, attended the same, made no objections as to want of preparation, and was allowed time to find a person who could point out to t]ie jury the improvements to be valued, and
The judgment is affirmed.