30 Kan. 525 | Kan. | 1883
The opinion of the court was delivered by
The facts of the case are as follows: The case was tried before C. F. Nichols, a justice of the peace, on March 28th. The next day a bill of exceptions was prepared by counsel, and signed in the name of the justice by Miss Carrie Short. The latter person was acting as his clerk — not officially, for justices of the peace have no clerks, but in a private employment. The bill of exceptions was signed by the clerk in the absence of the justice, and without his knowledge or consent. In fact, until the time the validity of this bill was challenged in the district court he had never seen it. Such a bill is a nullity. The allowance of a bill of exceptions, is a judicial act. No agreement of parties, or certificate of a clerk, can make one. (Comp. Laws 1879, ch. 80, §303; ch. 81, § 112a; Hodgden v. Comm’rs, 10 Kas. 637; Shepard v. Peyton, 12 id. 616; The State v. Bohan,, 19 id. 28; Building Association v. Beebe, 24 id. 363.)
Of course the mere clerical act of signing the name of the justice may be done by any one, if done by his direction. Such clerical act is then his act. But in the case at bar, it was done in his absence and without his knowledge or consent. He had never authorized his clerk to sign his name in his absence, He had never seen or approved this, bill. Beyond any doubt the paper when taken from the justice’s office without any other signature than that made by