Myers v. Faris
| Decision Date | 07 October 1935 |
| Parties | A. E. MYERS ET AL., RESPONDENTS, v. L. E. FARIS, DEFENDANT, FLORAL HILLS, INC., GARNISHEE, APPELLANTS |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Jackson County.--Hon. Glenn Donaldson Special Judge.
Appeal dismissed.
George T. Hinde and Moore, Smith, Aughinbaugh & Ault for respondents.
I. Frank Rope for appellant.
In this cause the respondents brought suit in the justice of the peace court and secured judgment against the defendant on a promissory note. The defendant appealed to the circuit court and judgment on appeal was for the plaintiffs and against the defendant.
The judgment in the circuit court is recorded as of February 23 1933. No appeal was taken from this judgment.
At the May term, 1933, of the circuit court execution was issued on the aforesaid judgment and the appellant herein was duly summoned with due process as garnishee. The summons of garnishment was made returnable to the said May term of court.
Within three days after the return day the plaintiffs in the case respondents herein, filed interrogatories to the garnishee, appellant herein, with the clerk of the Jackson County Circuit Court. It appears that no other notice other than the filing with the clerk was given to the garnishee.
No answer to interrogatories was made and thereafter and at a subsequent term, to-wit, September term, 1933, of said court, the issues between the plaintiffs and garnishee were taken up and on the eighth day of that term, to-wit, September 19, 1933, the court on default of garnishee, plaintiffs waiving a jury, heard the cause and found the issues for the plaintiffs and rendered judgment against said garnishee in the sum of $ 394.33.
The record proper certified to this court only shows copy of judgment of September, 1933, and the order granting an appeal. This order recites that application for appeal was filed at the January term, 1934, of said court, to-wit, on January 31, 1934.
As per the showing of the record proper, the appeal is shown as an appeal from the judgment entered as a final judgment at the previous May term of said court.
The abstract of the record filed in this case shows that, at the November term of said court, to-wit, December 8, 1933, the garnishee, appellant herein, filed a motion to quash the aforesaid execution and garnishment.
It further appears that on January 5, 1934, another day of the November term, 1933, of said court, the said garnishee filed a motion to set aside the default judgment of September 19, 1933.
It is shown that the motion to quash the execution and judgment was heard by the court on December 8, 1933, and the motion was refused and overruled. It further appears that the motion to set aside default judgment was taken up by the court on January 13, 1934, by the judge of said court and said motion refused and overruled.
The appellant's abstract of the record, as to motion for new trial, reads as follows:
"Motion for rehearing and new trial was filed by garnishee at the regular January term, 1934, of said court and within four days after the overruling of garnishee's motion to set aside the default judgment, to-wit, January 17, 1934; and on January 20, 1934, at the regular January, 1934, term of said court, said motion was overruled and proper exceptions saved."
Under points and authorities, the appellant presents as follows:
OPINION.The record in this case presents inconsistency. The record proper presents a copy of judgment rendered at the September term 1933, and the order granting the appeal is from the judgment as rendered at the September term, 1933, but recites upon its face that the application for appeal was filed at a subsequent term, to-wit, January term, 1934. From the record...
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