Harrison v. McCabe

• Decision Date: 01 January 1901
• Docket Number: 824.[*]
• Citation: 63 P. 277,10 Kan.App. 194
• Parties: T. W. HARRISON v. A. J. MCCABE, Judge of the Court of Topeka, in Shawnee County, Kansas, E. L. GOOD, Clerk of the said Court of Topeka, AND J. v. ABRAHAMS
• Court: Kansas Court of Appeals

63 P. 277

10 Kan.App. 194

T. W. HARRISON v. A. J. MCCABE, Judge of the Court of Topeka, in Shawnee County, Kansas, E. L. GOOD, Clerk of the said Court of Topeka, AND J. v. ABRAHAMS

No. 824.^[*]

Court of Appeals of Kansas

January 1, 1901

Decided January, 1901.

Error from Shawnee district court; Z. T. HAZEN, judge.

Judgment of district court affirmed.

SYLLABUS

1. PRACTICE, District Court -- Mandamus -- Approval of Appeal Bond. An action of mandamus will not lie to compel an inferior court to approve an appeal bond that materially misdescribes a judgment from which the appeal is sought to be taken.

2. -- Defective Appeal Bond -- Misdescription of Judgment. Where an appeal bond reciting a judgment materially different from the judgment actually rendered was presented to the trial court, and the party presenting the same was given a reasonable opportunity to file a bond properly describing the judgment therein, but refused to do so, mandamus will not lie to compel the granting of an appeal upon such defective bond.

3. -- Amendment of Bond -- Jurisdiction of Appellate Court. The district court, upon the trial of the issues in the proceeding in mandamus, was without authority to permit the filing of a good and sufficient bond in that court as a basis for an order of mandamus in an action pending. It is only where an appeal has been perfected upon an imperfect or informal bond, and after the appellate court acquires jurisdiction, that an amended or sufficient bond may be substituted.

T. W Harrison, for plaintiff in error.

John V. Abrahams, J. B. Larimer, F. H. Foster, and L. H. Greenwood, for defendants in error.

OPINION

WELLS, J.:

This is a proceeding originally instituted in the district court of Shawnee county to compel A. J. McCabe, judge, and E. L. Good, clerk, of the court of Topeka, to certify to said district court for trial the case of John V. Abrahams v. T. W. Harrison, then in judgment in said court of Topeka. Upon the issues therein formulated a trial was had and the peremptory writ denied. This judgment is brought here for review.

John V Abrahams, as assignee of Margaret A. Shaffer, brought suit in the city court of Topeka against T. W. Harrison for the use and occupation of certain real estate in said county. Harrison attempted to make one Harvey Henderson, executor, and others parties to said suit, but his motion therefor was denied, and the case was tried and judgment rendered in favor of John V. Abrahams and against T. W. Harrison. From the judgment so rendered an appeal was sought to be taken. Upon the forenoon of the last day upon which an appeal bond could be filed Harrison presented to the judge and clerk, who were then engaged in other business, what...