Hill v. First Nat. Bank
| Decision Date | 05 October 1889 |
| Citation | 42 Kan. 364,22 P. 324 |
| Parties | JOSEPH HILL v. THE FIRST NATIONAL BANK OF BELOIT, KANSAS |
| Court | Kansas Supreme Court |
Error from Mitchell District Court.
ACTION brought by The First National Bank of Beloit, against Joseph Hill, to enjoin the defendant from erecting a partition across the head of a stairway of a certain building, the property of said Hill, and situated on lot 12, block 12, of the city of Beloit. Judgment for plaintiff, at the January term, 1887. The defendant brings the case here. The opinion states the facts.
Judgment affirmed.
A. W Hicks, and J. H. Antrobus, for plaintiff in error.
A. H Ellis, for defendant in error.
OPINION
The parties to this proceeding own adjoining lots on which buildings have been erected that are united by a party wall. By agreement of the parties, a common stairway was to be erected between the buildings, which was to serve as an entrance from the street to the second stories of both buildings. A dispute arose between them as to the rights and liabilities of each in respect to the stairway and landing, and the bank brought an action to settle this dispute, and to enjoin Hill from obstructing the bank in the reasonable use of the stairway and landing which have been erected. The action was tried by the court at the January term, 1887, when a decree was rendered in favor of the bank; and Hill, as plaintiff in error, asks for a review and reversal.
It is now insisted by the defendant in error that nothing is presented by the record for our determination. Attached to the petition in error is a case-made, which it is argued should not be considered, because it was not settled and signed at the time fixed by the court. When the decree was given, time was asked in which to make a case for the supreme court, and the court granted the application and fixed the time when the case should be made and served, also the time within which amendments should be suggested; and further ordered that the case should be settled and signed on the first day of the succeeding term of court. The case was made and served and the amendments suggested within the prescribed times, but was not presented for settling and signing on the day set for that purpose. When it was presented, counsel for defendant in error objected to the jurisdiction of the court, claiming that Hill, having procured an order fixing the time of settlement, is bound by the terms of the order. The court, for reasons which it deemed sufficient, extended the time for settling and signing the case, but required that five days' notice should be given to the opposing party. This was done, and in pursuance of that notice the case was settled and signed, both parties being present, although counsel for defendant in error still insisted that the plaintiff in error had forfeited his right to have the case settled and signed.
It was certainly within the power of the court to settle and sign the case, although the time first fixed by its order had expired. When the case is not made and served within the prescribed time, and no extension of time has been granted the court is without power to act, (Life Insurance Co. v. Koons, 26 Kan. 215;) but this ruling is based on the ground that the statute limits the time within which a case must be made and served. No such limitation exists with respect to settling and signing a case, and hence the court may postpone such action and cause it to be done upon reasonable notice at a later time. (Hammerslough v. Hackett, 30 Kan. 57.) A very different question would arise if the court had declined to settle and sign the case. An order of the court fixing the time for such action, or providing that it should be done upon certain notice to be given by either party, should not be disregarded. If the party making the case ignores the order, he does so at the peril of the refusal of the court to settle and sign at a later date. If he disregards the order, or without sufficient excuse fails to present his case at the proper time, and the court should decline to grant him another...
To continue reading
Request your trial
-
United States v. Choctaw, Okla. & Gulf R.R. Co.
...the evidence supports the findings and judgment examined, a case-made should show that it contains all the evidence." (Hill v. National Bank, 42 Kan. 364, 22 P. 324.) ¶61 And it has been uniformly held by this court, in the the case of W. A. Wood Co. v. Farnham, 1 Okla. 375, 33 P. 867, Burf......
-
U.S. v. Choctaw, O. & G.R. Co.
...whether the evidence supports the findings and judgment examined, a case made should show that it contains all the evidence." Hill v. Bank, 42 Kan. 364, 22 P. 324. And it been uniformly held by this court in the case of W. A. Wood Co. v. Farnham, 1 Okl. 375, 33 P. 867 (Burford, J.), that: "......
-
Worrell v. Fellows
...Ryan v. Madden, 46 Kan. 245, 26 P. 679; Pelton v. Bauer, 4 Colo. App. 339, 35 P. 918; Eddy v. Weaver, 37 Kan. 540, 15 P. 492; Hill v. Bank, 42 Kan. 364, 22 P. 324. See, also, in support of this rule, Tootle, Wheeler & Motter Merc. Co. v. Floyd, 28 Okla. 308, 114 P. 259; Wagner v. Sattley Mf......
-
Gaffney v. Stanard
...K. & S. W. Ry. Co. v. Grimes, 38 Kan. 241 ; Ryan v. Madden , 26 P. 679; Pelton v. Bauer , 35 P. 918; Eddy v. Weaver, 37 Kan. 540 ; Hill v. Bank, 42 Kan. 364 ." ¶4 This defect in the case-made is called to the attention of the court by the brief of defendants in error. Counsel for plaintiff ......