Dyal v. City of Topeka

• Decision Date: 05 March 1886
• Citation: 35 Kan. 62,10 P. 161
• Parties: JOHN J. DYAL, et al., v. THE CITY OF TOPEKA
• Court: Kansas Supreme Court

10 P. 161

35 Kan. 62

JOHN J. DYAL, et al., v. THE CITY OF TOPEKA

Supreme Court of Kansas

March 5, 1886

Error from Shawnee District Court.

THE opinion states the nature of the action, and the facts. The plaintiffs Dyal bring the case to this court.

Judgment affirmed.

James J. Hitt, for plaintiffs in error.

Jasper H. Moss, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Shawnee county, by John J. Dyal and Seward E. Dyal, against the city of Topeka, to perpetually enjoin the defendant and its officers, agents and employes from interfering with the plaintiffs in the use and enjoyment of a certain piece of land which the defendant claims is a part of one of the public streets of the city, but which the plaintiffs claim is not a part of any street, but belongs to them as their separate and individual property. The case was tried before the court below without a jury, at a term of the court begun and held on January 7, 1884. After the plaintiffs had introduced their evidence and rested, the defendant demurred to the evidence, which demurrer was sustained by the court and the court then found generally in favor of the defendant and against the plaintiffs, and rendered judgment accordingly. On February 16, 1884, the plaintiffs filed a motion for a new trial. What the grounds set forth in this motion for a new trial were, or whether any grounds were set forth for a new trial, is not shown by the record. On March 1, 1884, the motion for a new trial was overruled, and the court then extended the time twenty days for making a case for the supreme court. The case was made and served within the time fixed by the court, and it was settled signed and authenticated on March 27, 1884, and on February 24, 1885, the case was brought to this court for review. Whether the motion for the new trial was filed within three days after the finding and judgment of the court below, is not shown by the record. Nor is it shown upon what grounds the motion for the new trial was made. No case was made for the supreme court within three days after the judgment was rendered, (Civil Code, § 548;) nor was the time for making a case extended within three days after the rendering of the judgment. ( AEtna Life Ins. Co. v. Koons, 26 Kan. 215.) The time, however, for making a case was extended within three days after the motion for the new trial was overruled; and the case was made, as before stated, within the extended time. Nor was the case brought to this court within one year after the judgment was rendered. (Sec. 556 of the Civil Code, as amended by the Laws of 1881, ch. 126, § 2; Estate &c. v. Loftus, 27 Kan. 68; Bennett v. Dunn, 27 id. 194; Brown v. Clark, 31 id. 521.) Of course, under such circumstances, we cannot review any judgment or order of the district court except the order overruling the motion for the new trial, and such other orders, rulings or judgments as may be necessarily involved in the ruling upon the motion for the new trial; for the case for the supreme court was not made and served within proper time to give us authority to review such other orders, rulings, or judgments, independent of the ruling upon the motion for the new trial. (See the foregoing statutes and authorities.) But, under the circumstances of this case, can we reverse the order of the district court overruling the motion for the new trial? As before stated, there is nothing in the case that shows that the motion was filed in time; nor is there anything that shows upon what grounds, if any, the motion for the new trial was made. From anything appearing in the record, the motion for the new trial may have been filed more than three days, and indeed as many as nine days, after the judgment was rendered in the case, and it may not have stated any...