Miller v. Weeks

• Decision Date: 09 May 1891
• Citation: 46 Kan. 307,26 P. 694
• Parties: MILLER v. WEEKS.
• Court: Kansas Supreme Court

26 P. 694

46 Kan. 307

MILLER v. WEEKS.

Supreme Court of Kansas

May 9, 1891

Syllabus

An order refusing to consider a motion to correct a judgment nunc pro tunc, and striking such motion from the files, is a final order from which an appeal is allowed by the Civil Code.

[Ed Note.–For other definitions, see Words and Phrases, First and Second Series, Final Order.]

The provisions of the Code and the rules of court concerning the presentation of appeals must be read and applied in the light of section 581 of the Code (Gen. St. 1915, § 7485), which commands that mere technical errors and irregularities not affecting substantial rights nor causing any uncertainty in the matter under review are to be disregarded.

Matters of evidence and estoppel which may be sufficient to defeat a motion to correct a judgment considered, and held insufficient to justify a refusal to consider the motion on its merits, and insufficient to justify an order to strike the motion from the files.

Appeal from District Court, Crawford County.

Garver & Bond, for plaintiff in error.

J. H Mahan, for defendant in error.

OPINION

SIMPSON, C.

In an action brought by the Richards & Conover Hardware Company against Joseph Weeks, an attachment was issued out of the district court of Dickinson county, and Miller, the sheriff levied the order of attachment upon a certain stock of hardware, together with tinners’ tools and materials, as the property of Weeks. This action in replevin was commenced by Weeks against the sheriff to recover possession of the tinners’ tools and materials, they being claimed as exempt to him by virtue of the eighth subdivision of section 3 of the exemption law. The cause was tried by a jury, who returned a general verdict for Weeks, fixing the value of the tools and materials at $500. They also answered special interrogatories as follows: "(1) At the time plaintiff made the assignment to S. G. Cooke, was his principal business that of a hardware and agricultural implement dealer? Answer. It was the principal branch of his business. (2) Did Weeks, prior to the making of his assignment, and up to that time, depend principally upon his hardware and agricultural implement business for the support of himself and family? A. He relied upon all as one business. (3) Was Weeks at the time of said assignment a practical tinner? A. No. (4) Were the tools in question used in the hardware and implement business of plaintiff? A. Yes, in connection with his business. (5) Did the hardware and implement business of plaintiff consist principally in the buying and selling of goods already manufactured, and did the tin ware and so forth made in plaintiff’s shop constitute only a small percentage of the goods sold in the entire business of plaintiff? A. The tin ware was the smaller part of his business. (6) Was the tinning business of plaintiff carried on independently of his hardware business? A. No. Q. Was the sheet iron business of plaintiff carried on independently of his hardware business? A. No. Q. Was the business of making tin ware and sheet-iron ware run in connection with the hardware business at the time the assignment was made, or was it at that time...