35 Kan. 357 | Kan. | 1886
The opinion of the court was delivered by
On January 2, 1885, S. Karsch filed a bill of particulars before a justice of the peace of the city of Wichita, demanding judgment against A. L. Petrie for $87.35, upon which summons was issued, returnable upon the 6th day of January, 1885. On the return-day the case was continued at the instance of the defendant, but whether it was adjourned until the 16th of January, or only until the 15th of the same month, was a matter of dispute. The justice made an entry upon the docket that the case was continued until the 15th day of- January, 1885, and on that day, the plaintiff failing to appear, judgment was rendered against him dismissing the cause. On the following day the plaintiff appeared, and finding that a judgment of dismissal had been entered, moved the court to set it aside, and in support of the motion filed an affidavit stating that “on or about the 6th day of January, 1885, he, as plaintiff' went to Justice Hobb’s court to try his
The plaintiff in error contends that the justice of the peace erred in setting aside the judgment of dismissal and reinstating the cause upon his docket for trial on the application of the plaintiff, claiming that there is no provision of the statute authorizing him to set aside the judgment and grant a newr trial upon auy of the grounds stated in the application. The motion to set aside the judgment of dismissal entered on the 15th day of January is not to be treated as an application for a new trial under the provisions of the justices code. Those provisions proceed upon the theory that the verdict or judgment has been given at the time when the cause could be tried, but in this instance it appears that the cause was taken up and disposed of when it was not triable. Although the justice made an entry that the cause had been continued until the 15th day of January, we are bound to assume from the record that the entry was a clerical error, and that the cause was
The judgment of the district court will be affirmed.