40 Kan. 747 | Kan. | 1889
This case was decided by this court in December, 1888. (Ante, p. 398, 19 Pac. Rep. 858.) In the Pacific Reporter the figures “52,” in the first line at the top of page 860, should be changed to “42;” and the words “judgment had,” in the sixteenth line from the top of page 861, should be changed to “hearing had.” A motion for a rehearing is now presented. It is still insisted by counsel for the plaintiff in error that the judgment mentioned in the bond, which was to be rendered “on final hearing of this case,” was a judgment to be rendered by the justice of the peace only, and not a judgment to be rendered “on final hearing of this case,” in whatever court the case might be when the “final hearing” of the case should be had. We have probably already said all that is necessary to be said in the case, but as counsel for plaintiff in error strenuously urge some points not covered by the opinion heretofore delivered, we shall add a few words.
Counsel for plaintiff in error now strenuously urge, that if no bond had been given in this case, then that the attachment and garnishment proceedings pending in the case at the time the judgment of the justice of the peace was rendered would have necessarily and finally and forever been discharged, vacated, annulled and ended by such judgment; and therefore he claims that there was no sufficient consideration to uphold the bond, if it should be construed as continuing in force so as to operate as a security for any judgment except the one rendered or to be rendered by the justice of the peace. There is no statute, however, and no decision, that sustains this claim of the plaintiff in error, and we think it is wholly untenable.
“Sec. 110. The justice before whom a cause has been tried, on motion of the party aggrieved, at any time within five days after the decision or verdict, shall vacate the decision or verdict and grant a new trial, for the same reasons and upon the same terms and conditions as provided in the code of civil procedure in like causes; aud he shall set a time for a new trial, of which the opposite party shall have at least three days’ notice.” (Justices Act, §110, as amended in 1885.)
See also Justices Act, §114; Civil Code, §§306, 568, relating to new trials. Also the following :
“Sec. 540. A judgment rendered or final order made, by a justice of the peace, or any other tribunal, board or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court.” (Civil Code, § 540.)
“Sec. 13. Bills of exception may be made, signed and sealed in any case tried before a justice of the peace, whether the action be tried by a jury or by the justice.” (Comp. Laws of 1885, p. 713, ¶ 4668.)
And when a case is taken on petition in error from a justice of the peace to the district court, of course everything which is existing or pending in the case at the time when the judgment or order complained of was rendered or made which affects such judgment or order, or which is involved in or is affected by the same, may be taken by the petition in error along with the rest of the case to the higher court. Whenever a final judgment or final order is rendered or made in a
The motion for the rehearing will be overruled.