Brewster v. Iola Carriage & Omnibus Co.

• Decision Date: 14 June 1899
• Citation: 57 P. 556,9 Kan.App. 888
• Parties: BREWSTER v. IOLA CARRIAGE & OMNIBUS CO. et al.
• Court: Kansas Court of Appeals

57 P. 556

9 Kan.App. 888

BREWSTER v. IOLA CARRIAGE & OMNIBUS CO. et al.

Court of Appeals of Kansas, Southern Department, Eastern Division

June 14, 1899

Syllabus

"Under the statutes of this state, no proceeding to reverse, vacate, or modify any judgment or final order can legally be commenced in the supreme court, except within one year after the making or rendering of such judgment or final order, unless the party instituting the same has in the meantime been under some legal disability." Byington v. Quinton, 25 P. 565, 45 Kan. 188.

Error from district court, Allen county; L. Stillwell, Judge.

Action between M. L. Brewster and the Iola Carriage & Omnibus Company and others. From the judgment, Brewster brings error. Dismissed.

Ewing & Bennett, for plaintiff in error.

Oscar Foust & Son and A. H. Campbell, for defendants in error.

OPINION

SCHOONOVER, J.

The defendant in error the Ioia Carriage & Omnibus Company has filed its motion to dismiss this case for the reason that no petition in error and case-made were filed in this court for more than one year after the rendition of judgment and final orders complained of.

Section 11. p. 13, 2 Gen. St. 1897, provides: "No proceeding for reversing, vacating or modifying judgments or final orders shall be commenced unless within one year after the rendition of the judgment, or making of the final order complained of, or in case the person entitled to such proceeding by an infant, or a person of unsound mind, or imprisoned, within one year as aforesaid exclusive of the time of such disability."

In this case the judgment and final orders in the court below were rendered and made on March 28, 1895. The petition in error and case-made were filed in this court on April 27, 1896,-one year and twenty-four days after the rendition of the judgment and making of the final orders complained of. We can exercise no discretion in this matter, we cannot extend the time, and it does not appear that the plaintiff in error is under some legal disability. The petition in error will be dismissed.