3 Kan. 433 | Kan. | 1866
By the Court,
In this case the court is called upon to determine whether, before the adoption in January 1865 of the rule on the subject of pleadings to be filed in cases appealed from justices of the peace to the District Court, the law required a petition to be filed by the plaintiff when the appeal was taken by the defendant ?
Section 107 of the act regulating the procedure before justices of the peace, provides that in cases appealed to the District Court “ the parties shall proceed, in all respects, in the same manner as though the action had been originally instituted in that court.” The 109th section requires the District Court to render judgment for the amount of the judgment of the justice in cases where the plaintiff appeals and fails to file a petition. It will be observed that neither of these sections in terms requires the filing of a petition, or any other pleading. A good reason cannot readily be found for requiring a petition to be filed when the plaintiff appeals and dispensing with it when the defendant is the appéllant. The object in requiring pleadings in either case is, to present, in the ordinary manner of proceedings in the District Court, an issue to be tried. It is just as essential that there be an issue made up in one case as in the other. The latter section referred to, seems to contemplate that some preceding section required the filing of pleadings. As no other section very manifestly
After the appeal is perfected, the parties are to proceed in the same manner as if the cause had been commenced, originally in the District Court, no matter which one is the appellant. The filing of the transcript presents no issue for trial. That merely brings the cause within the jurisdiction of the court. After that is done, an issue must be made up, the cause tried and judgment rendered as in any other cause. The filing of the transcript is not the commencement of a suit within the meaning of the Code. It is the removal of an action already commenced into the District Court. When it gets there, then the proceeding must, in.all respects be the same as though originally commenced there. This would not require the issuing and service of a summons, because the filing of the transcript, under the statute, gives the court jurisdiction of the parties.
It may be said that no time is fixed for the filing of the pleadings. This cannot affect the question. The fact that the court has failed to adopt such rules as are contemplated by the Code, cannot be made to operate as a repeal or nullification of the statute; especially when the matter is presented directly to the court, as was done in this case by motion. When the court was asked to dismiss the case it was its duty to sustain the motion or to require a petition to be filed. Proceeding with it under such circumstances, without the filing of pleadings, was erroneous.
The judgment will be reversed and the cause sent back to be proceeded with in accordance to this opinion.
