Cook v. Challiss

• Decision Date: 08 June 1895
• Citation: 55 Kan. 363,40 P. 643
• Parties: W. W. COOK et al. v. GEORGE T. CHALLISS
• Court: Kansas Supreme Court

40 P. 643

55 Kan. 363

W. W. COOK et al. v. GEORGE T. CHALLISS

Supreme Court of Kansas

June 8, 1895

Error from Atchison District Court.

AT the January term of the district court, to wit, on March 27 1890, judgment was rendered in favor of the said George T Challiss against the said W. W. Cook and T. A. Brace, and others, for the sum of $ 5,530 and costs. A case-made was prepared by Cook and Brace, but it was never settled nor allowed. The same material, with perhaps something additional, was, however, used as a transcript. The body of the certificate to this transcript is as follows:

"I Charles S. Albright, clerk of the district court within and for the county of Atchison and state of Kansas, do hereby certify the above and foregoing to be full, true and complete copies of the papers therein mentioned; that the above and foregoing transcript contains a full and complete copy of the petition of the plaintiff in the above-entitled action together with the exhibits thereof and the indorsements thereon, the process in said cause, being the summons issued against the defendants, W. W. Cook and T. A. Brace, together with the returns of the officers serving same as indorsed thereon, and all other indorsements on said summons; also, the pleadings subsequent thereto, and all orders, judgments and all material acts and proceedings of the court in said cause; and contains a copy of a motion of the defendants. W. W. Cook and T. A. Brace, to require plaintiff to separately state and number the causes of action in said petition, and their motion to require plaintiff to make his petition more definite and certain, with the journal entry of the doings of the court on said motion, the amended petition of plaintiff, and all indorsements thereon, the judgment of the court in said cause, the motion of the defendants, W. W. Cook and T. A. Brace, for a new trial, with the indorsements thereon, and the journal entry of the doings of said court on said motion, as fully as the same remain on file and of record in my office."

The defendants, Cook and Brace, bring the case to this court. The opinion herein was filed June 8, 1895.

Petition dismissed.

L. F. Bird, and A. F. Smith, for plaintiffs in error.

Henry Elliston, for defendant in error.

MARTIN C. J. All the Justices concurring.

OPINION

MARTIN, C. J.:

Section 546 of the code of civil procedure, as amended by chapter 86, § 1, of the Laws of 1870, reads as follows:

"The plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated or modified, or the original case-made as hereinafter provided, or a copy thereof."

This section was modified by chapter 185 of Laws of 1877, being "An act to reduce the expenses of litigation in the supreme court," whereby it was provided, among other things, "that in all actions hereafter instituted by petition in error in the supreme court, the plaintiff in error shall attach to and file with the petition in error the original case-made, filed in the court below, or a certified transcript of the record of said court." Section 1 of said chapter is published as § 546a of the code. (Gen. Stat. of 1889, P 4647.) The certificate of the clerk, appearing in full in the foregoing statement, although very long, does not literally comply with the requirements of either act. There is no statement that the document certified is a transcript of the proceedings nor a transcript of the record.

Counsel for plaintiffs in error refer to § 417 of the code which declares what shall constitute the record in a cause, and urge that as it includes "all material acts and...