Long v. Froman
| Citation | 49 Kan. 360,30 P. 461 |
| Parties | JOHN LONG et al. v. J. L. FROMAN et al |
| Decision Date | 08 July 1892 |
| Court | Kansas Supreme Court |
Error from Wyandotte District Court.
ACTION by Long and another against Froman and another, on an account for goods sold and delivered. From an order discharging an attachment entered therein, plaintiffs bring error.
Judgment affirmed.
McGrew & Watson, for plaintiffs in error:
1. We call attention to the fact that this case originated in justice court, and that the pretended bill of exceptions which it is claimed was there signed, allowed, and filed, was made and so signed, allowed and filed without submitting the same to opposing counsel for suggestion of amendments without permitting them to see it, or advising them that such proceeding was contemplated or being taken, and that, too where no emergency existed, when there was no necessity requiring hasty action of that character, and when the office of counsel for these plaintiffs in error was within a stone's throw of said justice court, and they might easily have been notified. While we do not urge that this court would be warranted in reversing this case on that point alone, yet the rules in reference to the appearance of parties at the signing of cases-made as laid down in the two cases, Weeks v. Medler, 18 Kan. 425; M. K. & T. Rly. Co. v. Roach, 18 id. 592, might well be applied to appearances at the signing of bills of exceptions in cases like this. At all events, the signing of a bill of exceptions, under circumstances such as this was, will lead the reviewing court to carefully scrutinize it.
2. We contend that no proper proceedings in error from the justice to the district court were commenced in the time and in the manner required by law. The statute, it is true, prescribes only the time within which bills of exception may be made, signed, and sealed, and is silent as to the time within which proceedings in error thereon must be commenced in the district court. Justice Code, § 112. Yet the reason for properly perfecting such proceeding in error within 10 days, the same as in cases of appeal, would suggest itself as controlling, so that there would be an end to litigation in justice court and the rights of the parties finally determined at some definite time. A petition in error was by them filed in the district court within 10 days from the trial day in justice court, but the same was based upon and accompanied with the original pretended bill of exceptions which should have been filed in justice court, and the certificate thereto of said justice nowhere within itself stated that the bill of exceptions contained all of the evidence or any of the evidence upon which the action of said justice court in sustaining the attachment was based; the only recitation as to all the evidence being in the body of said bill of exceptions. Accompanying said bill of exceptions and the petition in error, and attached to the latter as "Exhibit B," was a certified transcript of the justice docket, wherein was shown the witnesses heard orally on the motion to discharge the attachment; and immediately after naming them, it was recited: "After hearing the above testimony, I now overrule the above motion, to which ruling the defendants excepted," showing upon what evidence the court acted, and being conclusive that the bill of exceptions is untrue. A motion leveled at the foregoing irregularities, and to dismiss said proceeding in error, was filed by Long Bros., but the same was overruled and excepted to, and over our objection the court permitted the original bill of exceptions to be withdrawn and a transcript to be attached to the petition in error. Then, and not until then, was the proceeding in error to the district court properly commenced, (Jackson v. Stone, 17 Kan. 605,) and we think it was too late. The court below ought to have sustained the motion to dismiss, and erred in not so doing, especially as the record at that time showed upon its face that the bill was not a true one.
The averment of all evidence will be disregarded where an omission is apparent, or where it is shown that the bill of exceptions does not contain all the evidence. Collins v. Collins, 100 Ind. 266; Fellenzer v. Van Valzah, 95 id. 128; Cosgrove v. Cosby, 86 id. 511.
Was the bill of exceptions a true, legal and sufficient one, and did it contain all the evidence or the evidence at all upon which the justice court acted in the matter of the motion to discharge the attachment? At common law, it was necessary to incorporate all the evidence within the bill of exceptions. Doe v. Makepeace, 8 Blackf. 575; Goodwin v. Crane, 41 Ind. 335.
The bill is itself a part of the record. It must speak for itself. It must be its own evidence of all that it contains. A. &. N. Rld. Co. v. Wagner, 19 Kan. 335; Sexton v. Willard, 27 Wis. 465, 468.
Was any question properly submitted to the district court which was within its province to decide? No question of fact can be reviewed on a bill of exceptions. Lansing v. Wiswall, 5 Denio (N.Y.), 213; Emerson v. Young, 18 Vt. 603; Kettell v. Foote, 3 Allen (Mass.), 212; Fletcher v. Clarke, 29 Me. 485; Norwich & C. R. Co v. Kay, 22 Conn. 603. And especially is such the case where there is any evidence tending to sustain the judgment. Fellenzer v. Van Valzah, 95 Ind. 128; Cooper v. Machine Co., 37 Kan. 231; Railway Co. v. Foster, 30 id. 329.
Where, upon the motion to discharge an attachment, affidavits are read and oral evidence is submitted, tending to prove all the facts necessary to sustain the attachment, and thereupon the court refuses to grant such motion, a reviewing court will not disturb such ruling. Urquhart v. Smith, 5 Kan. 447. Where there is oral evidence upon a motion to discharge an attachment, an appellate court cannot review a decision upon the credibility of witnesses, or the weight which ought to have been given to their statements. Doggett v. Bell, 30 Kan. 300.
True & Foster, and Littick & Littick, for defendants in error:
Is there a proper bill of exceptions in the record? If the filing, which was on the original, was not placed on the copy, it was a clerical mistake of the justice, and is immaterial error, which should be disregarded. Edmondson v. Beals, 27 Kan. 656; Williams v. Henry, 17 id. 20.
Errors, to be reviewable in the supreme court, must have been brought to the attention of the court below. Palmetto Town Co. v. Rucker, McCahon, 145; Wilson v. Fuller, 9 id. 177; Seip v. Tilghman, 23 id. 204; Furrow v. Chapin, 13 id. 107; St. L. L. & D. Rld. Co. v. Wilder, 17 id. 239; Nicklisson v. Holman, 17 id. 22; Moore v. Wade, 8 id. 380; Gray v. Ulrich, 8 id. 112; Sleeper v. Bullen, 6 id. 300; White v. Bird, 45 id 759; Water Co. v. Hill, 46 id. 145.
Counsel for plaintiffs in error say that they had no notice of the allowance of the bill of exceptions. None is required by law. Bailey v. Dodge, 28 Kan. 50.
Did the district court err in permitting the petition in error to be amended, by detaching the original bill of exceptions and attaching a transcript with a certified copy of the bill? or did it err in overruling the justice? "The filing of amendatory and supplemental pleadings rests largely within the discretion of the trial court." Rogers v. Hodgson, 46 Kan. 276. "If the lower court did err in permitting the amendment of the petition, unless such error was so gross as to be a clear abuse of discretion, his ruling will not be reversed." See, also, L. & C. V. A.-L. Rld. Co. v. Small, 46 Kan. 300.
For a case on all fours with this, wherein a like amendment was made, see L. N. & S. Rly. Co. v. Whitaker, 42 Kan. 634. The district judge did not err in overruling the justice.
The plaintiffs in error sued the defendants in error in justice's court in Wyandotte county for the sum of $ 183 upon an account for groceries sold and delivered to them. At the time the suit was brought attachment...
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