City of Ft. Scott v. Deeds

• Decision Date: 11 June 1887
• Citation: 14 P. 268,36 Kan. 621
• Parties: THE CITY OF FORT SCOTT v. MARGARET S. DEEDS
• Court: Kansas Supreme Court

14 P. 268

36 Kan. 621

THE CITY OF FORT SCOTT v. MARGARET S. DEEDS

Supreme Court of Kansas

June 11, 1887

Error from Bourbon District Court.

THE opinion states the case. Judgment for plaintiff Deeds, at the September Term, 1885. The defendant city brings the case here.

Judgment affirmed.

W. W Martin, city attorney, for plaintiff in error.

B. J Waters, and J. M. Limbocker, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

On March 10, 1886, Margaret S. Deeds fell upon a sidewalk in the city of Fort Scott, and was injured, and on May 5, 1886, she presented her claim to the city council of Fort Scott for $ 1,000, damages therefor. The city of Fort Scott settled and compromised her claim, and she executed the following writing:

"JUNE 28, 1885.-- Received of W. W. Martin, city attorney, twenty-five dollars, payment in full for all damages caused by my falling on a sidewalk in said city of Fort Scott, Kansas, and breaking my arm, and otherwise injuring myself, on or about March 10, 1885.

MARGARET S. [Her mark x] DEEDS.

"$ 25. Witness: F. J. NUTZ."

Subsequently she brought her action against the city of Fort Scott to recover the sum of one thousand dollars damages, on account of her injury. She alleged in her reply, and attempted to prove, that the settlement and compromise were procured through fraud, misrepresentation, and undue influence. The jury returned a verdict in her favor for $ 975, being the amount she claimed, less the $ 25 already paid her. The city of Fort Scott attempts to bring the case here for review.

The proceedings in error are prosecuted in this court upon a case-made. No certified transcript of the record and proceedings has been filed. There is omitted from the case-made the order overruling the motion for a new trial and the entry of the judgment. Upon the record a preliminary question is presented: this is, that as the record does not show that the motion for a new trial was overruled, or any judgment rendered, the grounds for the petition in error are untenable, and ought not be considered. The city of Fort Scott attempts to cure the omissions in the case-made, by presenting to this court a certified copy of the journal of the district court containing the order overruling the motion for a new trial, and the entry of the judgment. It appears that after the case-made was settled, signed and filed, an application was made to the trial judge for...