79 P. 170 | Kan. | 1905
The opinion of the court was delivered by
This was a suit begun by the plaintiff in error in the district court of Sedgwick county to enjoin the defendants from filling up and® destroying an irrigation ditch. A temporary injunc
The defendants in error file their motion to have the case dismissed, claiming that this court is without jurisdiction, for the reason that the trial judge who settled and signed the case-made did not do so within the time fixed by the court, and hence had lost jurisdiction. Another reason is given, but the one stated is sufficient, and the motion must be allowed. The judgment in favor of the defendants was rendered on December 31, 1903, by the Honorable David M. Dale, then judge of said court. His term of office expired on the 11th day of January, 1904. At the time of rendering the judgment the following order was made :
“And thereupon, on motion of the plaintiff and by consent of the parties hereto, in open court, and sufficient cause therefor having been shown, it is ordered by the court that the time for serving a case-made in said cause be, and the same is hereby, extended for fifteen days from this date. It is further ordered that the said defendants be allowed five days thereafter to suggest amendments thereto.”
No order was made fixing the time for settling and signing the case-made. It was duly served on the defendants on the 13th day of January, 1904, within the time fixed by the order of the court. No suggestion of amendment was made, and after due notice by the plaintiff in error to the defendants in error of the time and place at which the case-made would be presented for settling and signing, Judge Dale settled and signed it, and the same was attested by the clerk of the court, on the 25th day of January, 1904. At
Chapter 380 of the Laws of 1903 expressly repeals section 548 of the code of civil procedure (Gen. Stat. 1901, §5034) and provides :
“The case-made or a copy thereof shall within ten days after the judgment or orders entered be served upon all opposite or adverse parties; . . . provided, that the court or judge before whom the case was tried may, on motion, order an extension of time for serving such case-made. . . .' And such parties . . . may within ten days thereafter suggest amendments in writing and present the same to the party making such case or his attorney. . ...”
Judge Dale had jurisdiction in this matter so long as the time fixed for serving a case-made, suggesting amendments thereto, or settling or signing the same, had not expired, and no longer. It is an especial, individual grant of power to one whose authority as a court and a judge had otherwise expired with the expiration of his term of judicial office. The grant, though somewhat anomalous, is for the beneficent purpose of enabling litigants who claim to have been defeated of justice in a court of which the grantee was judge to have their claims reviewed by the supreme court of the state. To this end the personal knowledge of the judge who tried the case is indispensable — he can have no substitute. If he die, or become mentally incapable, before settling and signing the case-made, the duty can devolve upon no other. The extraordinary power conferred upon a former judge as an individual, not as an officer, must
It is claimed that the statute of 1908 fixes the time within which suggestions of amendment may be made at ten days after, the service of the case-made, which is true; but the statute confers such a right as may be waived, and was, in this case, by the party entitled thereto to the extent of fixing such time at five days.
The proceeding in error will be dismissed.
