Ferree v. Walker

• Decision Date: 05 May 1894
• Parties: LAURA L. FERREE v. C. E. WALKER et al
• Court: Kansas Supreme Court

36 P. 738

54 Kan. 49

LAURA L. FERREE v. C. E. WALKER et al

Supreme Court of Kansas

May 5, 1894

Error from Wyandotte District Court.

ACTION by Ferree against Walker and others. Judgment for defendants. The plaintiff brings the case to this court. The opinion contains a sufficient statement of the facts.

Motion to dismiss allowed.

Fyke & Hamilton, and Scroggs & McFadden, for plaintiff in error.

John A Hale, for defendants in error I. D. Wilson and the First National Bank of Kansas City.

Hutchings & Keplinger, for defendant in error J. N. Thomas.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

Laura L. Ferree brought an action against C. E. Walker and nine other defendants in the district court of Wyandotte county and the judgment rendered in that court not being satisfactory to her, she brings a proceeding in error, in which only four of the defendants have been brought into this court. The defendants in error ask for a dismissal of the petition in error upon three grounds: First, that the case-made was not served in due time; second, that there is a fatal defect of parties in this court; and third, that the motion for a new trial does not appear to have been filed within the required time. The two grounds first named appear to be sufficient to sustain the motion, but as the first alone is sufficient the other does not require consideration. From the record, it appears that the cause was tried on January 20, 1890. It does not appear therefrom that there was any adjournment, or that the matter was taken under advisement by the court when the testimony was concluded. No motion for a new trial was filed until February 6, 1890, and, for aught that appears in the record, the motion may have been overruled because it was not filed in due time. The recital of the overruling of the motion for a new trial follows immediately upon the record of the filing of the same, on February 6, 1890, leaving the inference that it was disposed of on the day upon which it was filed. The next recital in the record following the overruling of the motion for the new trial is that the court, for good cause shown, gave plaintiff in error 90 days in which to make and serve a case, and gave 60 days to the defendants to suggest amendments thereto; the case to be settled and signed by the judge upon 10 days' notice. The record does not show any further extension of time, and the case-made was not served until May 20, 1890. No amendments were suggested, and the case was signed on August 5, 1890.

From this record, it would appear that the motion for the new trial was filed 17 days after the decision was made, and that the case-made was not served within 90 days, nor until 13 days after the expiration of the prescribed time. When the time for making and serving the case has elapsed, the judge is without power to extend the time for that purpose, or to settle and sign a case which may thereafter be made and presented. The jurisdiction of the judge having been so lost it...