Harder v. The Yates Center Water

• Decision Date: 14 November 1914
• Docket Number: 17,302
• Parties: C. F. HARDER, Appellant, v. THE YATES CENTER WATER, LIGHT AND POWER COMPANY et al., Appellees
• Court: Kansas Supreme Court

148 P. 603

93 Kan. 177

C. F. HARDER, Appellant, v. THE YATES CENTER WATER, LIGHT AND POWER COMPANY et al., Appellees

No. 17,302

Supreme Court of Kansas

November 14, 1914

Decided, July, 1914.

Appeal from Woodson district court; OSCAR FOUST, judge.

Judgment sustained and cause dismissed.

SYLLABUS

SYLLABUS BY THE COURT.

JUDGMENT--Motion for New Trial Filed Too Late--Cause Dismissed. It appearing from the record that the judgment was rendered on the 20th day of April, and that the motion for a new trial was filed on the 29th day of April, 1910, the cause will be dismissed for the reason that the motion was filed more than three days after the rendition of the judgment appealed from.

S. C. Holmes, of Yates Center, for the appellant.

F. W. Casner, of Kansas City, Mo., G. H. Lamb, and W. E. Hogueland, both of Yates Center, for the appellees.

OPINION

PORTER, J.:

Plaintiff sued to enjoin the erection and maintenance of a dam and reservoir on a stream adjacent to his lands, which he alleged is a natural watercourse, and which ran through his own land above and below the dam. He alleged that defendants by maintaining the dam where it is caused the water to flood the portion of his lands above the reservoir and prevented the natural flow of the stream upon other lands belonging to him below. There is no question raised except as to trial errors. At the outset plaintiff's right to be heard in this court is challenged on the ground that his motion for a new trial was filed too late. It is stated in the abstract that the judgment was rendered April 20, and that the motion for a new trial was filed on April 29, 1910. The point was raised at the oral argument and in the briefs, and from the silence of counsel we assume there is no explanation to be made. The motion having been made more than three days after judgment, the challenge is sustained and the cause will be dismissed.