Shore v. White City State Bank, 59 P. 263

Shore v. White City State Bank

59 P. 263 | Kan. | 1899

The opinion of the court was delivered by

Smith, J.:

The objection that the order of consolidation was improperly made is not available to the plaintiffs in error. While the court probably erred in consolidating the two actions, yet we cannot say that plaintiffs in error were not fully notified of the action of the court, and, in fact, we cannot presume *252that they were not present when the order was made. While the statute (Gen. Stat. 1897, ch. 95, § 145 ; Gen. Stat. 1899, § 4895) provides that a consolidation can only be ordered on application of the defendant in actions which might have been joined, after notice to the adverse party to show cause, the record before us does not show any objection on the part of the plaintiffs in error to the action of the court. We cannot presume that the court erred in making the order. All presumptions are in favor of the validity of judgments, orders and proceedings of a court of general jurisdiction. (Towne v. Milner, 31 Kan. 207, 1 Pac. 613 ; Buettinger v. Hurley, 34 id. 585, 9 Pac. 197; Town of Le Roy v. McConnell, 8 id. 273 ; Lawson, Pres. Ev. 36.) In the last case cited the court said: “All presumptions are in favor of the rulings of the court below, and this presumption is not removed by any number of possibilities.” In Elliott on Appellate Procedure, section 710, the author says :

“The rule that all reasonable presumptions and intendments will be made in favor of the rulings of the trial court is one of the best settled and most frequently applied rules in appellate procedure. The rule rests on a firm foundation. It is supported by the elementary principle that official acts are presumed to be rightfully performed. But when it is brought to mind that a court acts impartially, upon full information and with calm deliberation, the foundation of the rule stated will at once be perceived to be broader and stronger than that which underlies the rule supporting the acts of ministerial or executive officers.”

Alleged errors in the progress of a trial, not excepted to, are deemed to be waived, and will not be considered in this court. (Crowther v. Elliott, 7 Kan. 235.) It will be noticed that the order of consolidation was made and entered of record on March 22, 1897, *253and no objection to the order appears anywhere until March 15, 1898, after a trial had before the referee, at which all parties appeared. The first objection by plaintiffs in error to the consolidation was in their motion to set aside the report of the referee, and this after they had filed a motion for a new trial. From the recitals in the record and the conduct of the parties, all objections to the consolidation must be deemed waived.

We think the consolidated actions were properly referred. The second amended petition filed by plaintiffs in error against the bank, as we understand its allegations, was not an action in tort except as to the matters set up in the second count. If the Shores owed the bank an amount equal to the value of the personal property mortgaged which could only be determined by an accounting, then there was no cause to complain of the action of the latter for taking possession and disposing of the property. The prayer of the second amended petition asked for an accounting. The plaintiffs below prayed “that the defendant be required to fully and fairly account to them for the value of the property so sold, less whatever sum plaintiffs legally owed at the time to the defendant.” The dealings between the parties involved transactions running over the space of ten years.

The second cause of action was founded in tort, but the same was barred by the statute of limitations. This is shown on the face of the amended petition. The wrong was committed in November, 1892, and the action was commenced January 29, 1896.

There is no merit in the contention that plaintiffs in error had no notice of the filing of the referee’s report.' They filed a motion for a new trial ten days before the referee’s report was filed. They also en*254tered into astipulation authorizing the court, or judge, to extend the time for the referee to report. The condition at the bottom of the stipulation that the plaintiffs in error waived nothing by it was inconsistent with the grant of power to the court to extend the time. Parties cannot be thus inconsistent. The agreement that the court or judge might make an order estopped the parties so agreeing from denying the legal right of the court to do what they had stipulated. Nor can they say that the condition in the stipulation does not refer solely to the objections by plaintiffs in error to the order of reference, limiting the effect of the agreement in respect to such order only.

The judgment of the court below will be affirmed.