38 Kan. 359 | Kan. | 1888
The opinion of the court was delivered by
None of the grounds upon which the motion to quash was based are sufficient. The so-called compromise agreement was a conditional one. Rierson agreed to remit $37.50 of the judgment which he had recovered, provided the railway company paid the balance of the judgment within thirty days, and constructed a cattle-guard within the same period. The failure of the company to build the cattle-guard and thus complete the inclosure of defendant in error, caused the damage upon which the judgment was founded. From the nature of things, the time of payment and of the construction of the cattle-guard, were the important elements of the agreement, but the company failed in respect to both. The judgment and costs less the $37.50 was not paid in thirty days, nor until an execution had been issued, and the payment was then made to the officer who held the execution. The cattle-guard was not constructed at the time agreed upon, nor had it been built when the alias execution was issued and the motion to quash was filed. The company having failed to
The action of counsel for Rierson in causing the petition in error which said railway company had filed in the supreme court to be dismissed is of no consequence, and is not a waiver of the non-compliance of the railway company with the conditions imposed. No proceeding in error was actually instituted. To commence the proceeding a summons should have been issued, or a waiver of summons filed. No summons was issued or waiver filed; but instead of taking these steps it appears that the counsel for the railway company, when the petition in error was filed, directed the clerk of the court not to issue a summons thereon.
The last point made is, that-the alias execution is invalid because it commanded the sheriff to make the whole amount of judgment and costs, notwithstanding, the fact that $225.05 of the judgment had been paid. On its face there was' such a command, but indorsed on the execution there was a credit of the amount actually paid. Even if the execution had issued for too large an amount, the proper practice would have been a motion to set aside as to the excess, rather than a motion to quash the execution. [Bogle v. Bloom, 36 Kas. 512.) The order of the district court was correct, and will be affirmed.