18 Kan. 425 | Kan. | 1877
The opinion of the court was delivered by
This case is presented to this court on a petition in error, and what the clerk of the court below certifies as “a true and correct copy of a case-made.” The counsel for defendant in error raises the question, that the case-made was not properly signed and settled as provided by law, as the defendant in error was deprived of opportunity to suggest amendments, and to present the same as authorized by sec. 1, ch. 114, laws of 1871, page 274. The judgment in the case was rendered on January 4th 1876; and thereupon counsel for Weeks “asked for three days from said date to make a case for the supreme court, which for good cause shown, was by the court granted and allowed.” On the same day, January 4th, the said counsel for Weeks presented to the court what purported to be a true and correct case-made, and asked the court to sign and allow the same; and the record shows the following action:
“ Said case-made having been duly served on counsel for plaintiff (defendant in error in this court) for suggestion of amendments, and the court having carefully examined the same, and being satisfied that it is in all respects true and correct, does thereupon on the day last aforesaid, (January 4th 1876,) sign, settle, and allow the same, and orders that it be made a part of the record herein. Given under my*427 hand in open court, at Erie, the day and year last above written. ' Peter Bell, Judge.
“Attest, John E. Corey, Cleric.”
And said “case-made” bears the indorsement, “Filed, Jan. 4th 1876.” The record nowhere shows that the defendant in error was present in court when the case-made was presented, or signed, or that the defendant had examined the case, or offered or declined to suggest amendments thereto, or ever assented by himself or counsel to such case being settled or signed, or filed, or had any notice that such case-made would on that day be presented for settlement. Under these circumstances we cannot pass upon the questions presented in the brief of counsel for plaintiff in error, as the paper attached to the petition in error is no copy of a legal case-made, within the purview of the statute. In M. K. & T. Rly. Co. v. City of Fort Scott, 15 Kas. 435, it was held, that “the making and serving of a case, are the acts of the plaintiff in error; the suggestion of amendments, the act of the defendant in error; and the settling and signing of the case, the duty of the judge;” and that the statute relating to a case-made “may be read so as to mean that the- three days in which to suggest amendments shall be three days after the actual service of the case, and not after the time given in which to serve;” but that the construction, “making the three days to commence upon the expiration of the time given for making and serving the case, while equally warranted by the language is more in harmony with the definitions and regularity of judicial proceedings, and therefore to be preferred.” In this case, the defendant in error had neither the three days after the actual service of the case, nor three days after the time given in which to serve the same, to suggest amendments, as the case was asked for, allowed, served, settled, attested, sealed, signed, and filed, all on the same day.. The defendant in error was thereby debarred of his rights provided in the section of the law making provision for a case-made. The purpose of the plaintiff in error, asking and obtaining the leave of the court for three days’ time in which to make
The fact that the record shows that the case-made was signed in open court, does not aid the legality of the paper filed, as the settling and signing of a case-made is an act of the judge, and not a part of the proceedings in a suit of the court, technically speaking; and in this case the paper was signed by the judge. It is true, as the less is included in the greater, the court has like power to settle a case-made; but as it may be settled by the judge, in court, or out of court, we cannot hold that a party is bound to be in attendance upon the court all the time from the service of a- case-made till it is settled; nor can we presume that the settling and signing of a “case-made” by a judge, is with the consent or appearance of the opposite, party, where there is nothing in the record affirmatively showing this fact. The mere signature of the district judge to the paper, a copy of which is presented to this court, as a case-made, is not a sufficient showing that the prerequisites to make the case a valid one, were complied with. The jurisdiction of the judge to settle the case, is a special and limited jurisdiction, which only arises at the times, and under the circumstances, specified by law; and in the absence of any appearance of the opposite party, or a waiver of amendments, it should appear from the record, that the case had been duly served, and that amendments had been suggested, or waived, or, that such opposing party had notice of the time and place of the settling of the case. In other words, the record should show affirmatively, the
The counsel for plaintiff in error has sought to complete, and perfect the case-made by filing in this court a certified copy of the amended bill of particulars, and also a certified copy of the judgment in the case; but these papers in no way cure the fatal defects in the original case-made, and give it no new vitality.
Counsel for plaintiff in error suggests, that if the case-made was improperly settled and signed, that the pleadings and bills of exceptions present a full record of the proceedings of the district court, and thereon, that this court can review such proceedings. Unfortunately for the suggestion, the only paper filed with the petition in error is what purports- to be. a certified copy of a case-made. There is not attached to any paper in the case in this court any certificate of the clerk of the district court showing that a transcript of the proceedings of the court below is here, and there is no certificate of the clerk stating that any copy of any bill of exceptions is filed in the case. The clerk certifies that we have a true and correct copy of the case-made, as the original is now of record at his office. This, and nothing more.
The case will therefore be dismissed.