Atkins v. The Nordyke-Marmon Company
| Decision Date | 11 March 1899 |
| Docket Number | 11285 |
| Parties | JANE ATKINS, EDWINA ATKINS, JOSIAH ATKINS, AND LUCY ATKINS, Trustees of the will of Richard Atkins, deceased, v. THE NORDYKE-MARMON COMPANY |
| Court | Kansas Supreme Court |
Decided January, 1899.
Error from the court of appeals, northern department; JOHN H MAHAN, ABIJAH WELLS, and SAM'L W. MCELROY, judges.
Petition in error dismissed
S. L Seabrook, for plaintiffs in error.
Rossington Smith & Histed, and Samuel Barnum, for defendant in error.
This case was tried in the circuit court of Shawnee county upon an agreed statement of facts in writing. Judgment was entered in favor of the defendant below on January 19, 1893. On January 21, 1893, the plaintiff below filed a motion for a new trial, which motion was overruled on February 8, 1893. On that day sixty days were allowed to plaintiffs below to make a case, with time to defendants to suggest amendments. The case was settled and signed. A motion has been made to dismiss the proceedings in error for want of jurisdiction in this court. This motion must be sustained.
In order for plaintiffs below to obtain a review it was necessary for them to serve a case-made within three days from the date of the final judgment, January 19, or within that period obtain an extension of time. (Gen. Stat. 1897, ch. 95, § 589; Gen. Stat. 1889, P 4649.) No motion for a new trial was necessary in the circuit court, the case having been tried upon an agreed statement of facts. (Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36, 39 P. 718.) The motion being unnecessary, the filing of it cannot serve the purpose of extending the time beyond the three days from the entry of judgment in which to make and serve a case or to apply for an extension of time. (Schnitzler v. Green, Constable, 5 Kan.App. 656, 47 P. 990.)
It is urged that because defendant in error appeared and argued this case in the court of appeals it cannot now complain of defects in the case-made. This matter, however, affects the jurisdiction of the court over the subject-matter and cannot be waived. It has been held by this court that "the district judge has no power to extend the time for making a case after the time fixed by the statute and by the order of the court and judge has once elapsed."
The parties to a record cannot extend the time for making the case by stipulation between themselves, in the absence of an order of the court or judge granting such an extension. ( AEtna Life Ins. Co. v. Koons, 26...
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...971; Spaulding Manufacturing Co. v. W. H. Dill et al., 25 Okla. 395, 106 P. 817. Being jurisdictional, it cannot be waived. Atkins v. Nordyke, 60 Kan. 354, 56 P. 533. For this reason the subsequent amendment by leave of the petition in error so as to make Hinds a party, upon which a summons......
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...Bettis v. Cargile, 23 Okla. 301, 100, 100 P. 436 P. 436; Horner v. Christy, 4 Okla. 553, 46 P. 561. ¶10 Adams et al. v. Nordyke-Marmon Company, 60 Kan. 354, 56 P. 533, seems to settle this question against the contention of the plaintiffs in error. That case was appealed from the circuit co......
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Coss v. Sterritt
...971; Spaulding Manufacturing Co. v. W. H. Dill et al., 25 Okl. 395, 106 P. 817. Being jurisdictional, it cannot be waived. Atkins v. Nordyke, 60 Kan. 354, 56 P. 533. For this reason the subsequent amendment by leave of petition in error so as to make Hinds a party upon which a summons issue......
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Am. Nat. Bank of Mcalester v. Mergenthaler Linotype Co.
...971; Spaulding Manufacturing Co. v. W. H. Dill et al., 25 Okla. 395, 106 P. 817. Being jurisdictional, it cannot be waived. Atkins v. Nordyke, 60 Kan. 354, 56 P. 533. For this reason the subsequent amendment by leave of the petition in error so as to make Hinds a party upon which a summons ......