Duston v. Foster
| Decision Date | 08 March 1902 |
| Docket Number | 12,033 |
| Citation | 64 Kan. 886,67 P. 1102 |
| Parties | MONROE DUSTON v. R. L. FOSTER |
| Court | Kansas Supreme Court |
Decided January, 1902.
Error from district court, Washington county; F. W. Sturges, Judge.
Action by R. L. Foster against Monroe Duston. From a judgment of the district court, Duston brings error. Reversed.
Where the record brought up for review is based on a transcript the clerk's certificate must show that the transcript contains all the proceedings in the case, as shown by the record in the court below, or the appeal will be dismissed.
Argued before DOSTER, C. J., and JOHNSTON, ELLIS, and POLLOCK, JJ.
Chas Smith, Edgar Bennett, T. P. Roney, and Fred Powell, for plaintiff in error.
J. W Rector, Neil. F. Graham, and Joseph G. Lowe, for defendant in error.
Monroe Duston and R. L. Foster were candidates for county treasurer of Washington county, and the result of the election, as declared by the board of canvassers, was that Duston was elected. A contest was initiated by Foster, and a large volume of testimony was taken before the contest court, and many rulings made, after which judgment was given for Duston. Foster attempted to take the case on error to the district court, but the transcript of the record taken up was not authenticated, and when the point was made in the district court it was overruled. In the absence of an authenticated record no review can be had. To obviate this objection attention is called to a stipulation agreeing that the original bill of exceptions might be withdrawn from the record and considered as an authentic copy of the same, and that the issues should be heard and determined as though it were a copy instead of the original. The stipulation applies to the bill of exceptions alone, and has no reference to matters of record outside of the bill of exceptions, nor to the authentication of the record. The pleadings, processes orders, etc., which are a matter of record, and cannot properly be included in a bill of exceptions, are not affected by the stipulation. A review cannot be had on either the original or copy of the bill of exceptions alone, and can only be based on the entire record of the contest. Before a reviewing court acquires jurisdiction of a case brought up on a transcript, it must be duly authenticated, and it must appear from the certificate of the clerk of the court that a complete transcript of all the proceedings is included. Moore v. Cutler, 18 Kan. 607; Burns v. Burdgett, 19 Kan. 162; ...
To continue reading
Request your trial