City of Eureka v. Merrifield

• Decision Date: 06 July 1894
• Citation: 37 P. 113,53 Kan. 794
• Parties: THE CITY OF EUREKA v. L. A. MERRIFIELD et al
• Court: Kansas Supreme Court

37 P. 113

53 Kan. 794

THE CITY OF EUREKA v. L. A. MERRIFIELD et al

Supreme Court of Kansas

July 6, 1894

Error from Greenwood District Court.

JAMES A. MERRIFIELD, an infant of the age of about two years, the son of L. A. and Mary E. Merrifield, on the 8th of December 1888, fell into a privy vault in the city of Eureka, in Greenwood county, which was situate upon lot 6, in block 25 in the possession of the Eureka Hotel Company. The Merrifields lived on a lot adjoining the one containing the vault. The little boy was playing in the yard where his parents lived and adjoining the lot on which the vault was situated; he went into the alley, and probably stepped on a trapdoor over the vault, which tipped, throwing or permitting him to fall therein, where he was found on the same day dead. On the 7th of October, 1889, L. A. and Mary E. Merrifield the parents of James A. Merrifield, filed their amended petition against the city of Eureka to recover $ 10,000 damages, alleging, among other things,

"That an alley of the city abutted directly onto the vault, and that the city grossly, carelessly, and negligently, on the 8th of December, 1888, and for a long period of time prior thereto, omitted to put up or around the vault any guard or railing, and that the city carelessly and negligently permitted the vault to remain uncovered, save and except by a loose trapdoor, and thereby carelessly and negligently permitted the opening of the vault to remain in a dangerous condition."

On the 26th of October, 1889, the city of Eureka filed its demurrer to the amended petition upon the following grounds:

"1. Because there is a misjoinder of parties plaintiff.

"2. Because the same does not state facts sufficient to constitute a cause of action against the defendant.

"3. Because the same does not state facts to show that the plaintiff sustained any damage by reason of the death of said child."

At the January term for 1890, the demurrer came on for hearing, and after argument was overruled by the court. The city duly excepted. Subsequently an answer and reply were filed. The cause was tried before a court with a jury, at the May term for 1890. The jury returned a verdict for the plaintiffs and assessed the amount of their recovery at $ 1,000. Subsequently judgment was rendered thereon against the city of Eureka. The city excepted, and brings the case here.

Judgment reversed and cause remanded.

Ira P. Nye, Kelley & Lamb, W. S. Marlin, and C. N. Sterry, for plaintiff in error.

A. M. Hunter, James Shultz, and Clogston & Fuller, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

A preliminary question is presented. It is insisted that the case-made should be stricken from the files, because it was not attested by the district clerk of Greenwood county with the seal of the court, and indorsed as filed at the time the case was settled and signed. (Civil Code, § 548.) It appears from the record that service of the case was accepted by the attorneys of plaintiffs below on the 19th day of September, 1890; that at that time they signed the following indorsement or writing upon the case: "We have no amendments to suggest, and consent that the same be settled and signed." The case was settled and signed by the district judge on the 10th of October, 1890. In his certificate, he directed the case-made "be filed as a part of the record in said action." That implied that the case-made should be attested. It could not be properly filed as a part of the record unless attested with the signature of the clerk and the seal of the court. The case was complete and perfect when it was signed by the trial judge, and all that was necessary to make it evidence in this court was its attestation and authentication by the district clerk.

Appeals are favored, and mere technical objections which do not go to the merits of the case ought not to prevail, if a court, in its discretion, may, in the furtherance of justice, allow amendments to be made or omissions to be supplied. Upon an application made to this court by the plaintiff in. error, and a showing that the district clerk had failed to attest the case-made and indorse thereon the date of its filing, this court permitted the record to be withdrawn for the purpose of being properly attested and marked "filed" by the district clerk. It was returned attested, and marked as filed. Upon the showing, when application was made to this court to withdraw the record, it appeared that it was left with the district clerk for filing when it was settled and signed. It was not filed in this court until October 29, 1890. The mere omission of a district clerk to enter upon a paper or record left with him the date of its filing ought not to prejudice anyone. We think this court had full power, under the circumstances, to permit the attestation and filing by the clerk of the district court at any time before the case was heard or disposed of upon proceedings in error. (Pierce v. Myers, 28 Kan. 364.) The motion to strike out will be overruled.

Upon the merits of the case, the first question presented is, did the petition filed in the court below state facts sufficient to constitute any cause of action in favor of L. A. and Mary E. Merrifield against the city of Eureka? Section 420 of the civil code, as construed with § 422 only permits actions to survive for injury to the person when death does not result from the injury but occurs from other causes. When death results from the injury, § 422 is exclusive. (McCarthy v. Railroad Co., 18 Kan. 46; Tiffany, Death by Wrongful Act, § 119.) Under § 422, the action for damages or loss by death from the wrongful act or omission must be commenced by the personal representative of the deceased. By § 1, chapter 131, Laws of 1889, it is provided, that where the residence of a party whose death is caused by the wrongful act or omission of another is or has been at the time of his death in any other state or territory, or when, being a resident of the state, no personal representative is or has been...