Erb v. Morasch

• Decision Date: 11 February 1899
• Docket Number: 11288
• Citation: 56 P. 133,60 Kan. 251
• Court: Kansas Supreme Court
• Parties: NEWMAN ERB, as Receiver of the Kansas City, Wyandotte & Northwestern Railroad Company, v. OTTO J. MORASCH et al

56 P. 133

60 Kan. 251

NEWMAN ERB, as Receiver of the Kansas City, Wyandotte & Northwestern Railroad Company, v. OTTO J. MORASCH et al

No. 11288

Supreme Court of Kansas

February 11, 1899

Decided January, 1899.

Error from court of appeals, northern department; JOHN H. MAHAN ABIJAH WELLS, and SAM'L W. MCELROY, judges.

Waggener Horton & Orr, for plaintiff in error.

McGrew Watson & Watson, for defendants in error.

OPINION

SMITH J.:

This action was brought in the district court of Wyandotte county by Otto J. Morasch and Eliza Morasch, the father and mother of Irene Morasch, to recover damages from the plaintiff in error for the death of said Irene Morasch, an infant about twenty-two months old, said death being caused, as alleged, by a passenger-train negligently operated by the engineer and trainmen of the receiver running upon and over said infant. The accident occurred within the corporate limits of Kansas City, Kan., a city of the first class. Plaintiffs below recovered a verdict for the sum of $ 1020, and judgment was rendered accordingly. On proceedings in error to the court of appeals, northern department, the judgment was affirmed. (8 Kan.App. --, 54 P. 323.) Afterward, and on October 3, 1898, the plaintiff in error made an application to this court for a certificate of review, seeking to have the decision of the court of appeals reversed for errors committed by that tribunal in the consideration of the case. This application was addressed to the discretion of this court, under section 23 of chapter 84, General Statutes of 1897, and was denied. The plaintiff in error, on October 6, 1898, filed in this court a copy of the case-made and transcript upon which the cause was considered in the court of appeals, together with a petition in error containing twenty-one assignments, and had summons in error issue to said defendants in error. A motion has been filed by defendants in error to dismiss the cause for the reason that an appeal to this court by plaintiff in error cannot be considered as a matter of right.

This last attempt to invoke the action of this court in the case proceeds upon the theory that the plaintiff in error is entitled to have the decision of the court of appeals reviewed here as a matter of right, under section 31, chapter 84, General Statutes of 1897, which reads:

"Proceedings in error may be taken from the judgment of the courts of appeals to the supreme court in any action or proceeding where the courts of appeals have original jurisdiction, or in any case involving the tax or revenue laws of this state, or the title to real estate, or the constitution of this state, or the constitution, laws or treaties of the United States."

The establishment of the courts of appeals was intended to relieve the crowded docket of this court, and to save litigants from that long delay in the hearing of causes which theretofore, in some instances, resulted in a practical denial of justice. It is important therefore to parties litigant that in aid of the prompt administration of justice this court refuse to entertain jurisdiction of causes brought here from the courts of appeals, unless the right to review the action of those courts is clear and undoubted under said section 31, or unless errors are pointed out which challenge the attention of this court to a degree demanding an order for the removal of the cause here for rehearing.

In the case at bar a review of the decision of the court of appeals is sought for the reason that that court sustained the validity of a city ordinance limiting the speed of railway-trains within...