Neiswender v. James

• Decision Date: 05 April 1889
• Citation: 21 P. 573,41 Kan. 463
• Parties: DAVID F. NEISWENDER v. E. T. JAMES, as Administrator of the estate of Elizabeth Gutshall, deceased
• Court: Kansas Supreme Court

21 P. 573

41 Kan. 463

DAVID F. NEISWENDER v. E. T. JAMES, as Administrator of the estate of Elizabeth Gutshall, deceased

Supreme Court of Kansas

April 5, 1889

Error from Shawnee Superior Court.

THE opinion states the case.

Petition dismissed.

Overmyer & Safford, and G. W. Carey for plaintiff in error. A.

H Vance, and B. Crumrine, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This is a proceeding to reverse a judgment of the superior court of Shawnee county, given on October 21, 1886, in favor of the defendant in error, for the sum of $ 800.52. Various grounds of error are assigned and argued, but the record brought up for review is so defective and incomplete that we are not permitted to examine the case upon its merits. The sufficiency of the record is not questioned by the defendant in error, and ordinarily only such questions as are called to the attention of the court are noticed; but in this case the record falls so far short of what is required by the statute that the defect cannot be overlooked. It purports to be a transcript, but it contains only certain findings of the court, a motion for a new trial, and the judgment. It shows that the case was heard upon pleadings and testimony, but what the pleadings contained, or what the issues in the case were, is not shown. There are two methods of bringing a civil case up for review: one upon a case-made, and the other upon a transcript. In no other way can the appellate jurisdiction of the court to review such cases be invoked or exercised. The case-made may be very brief, much more so than a transcript, and the first-named was devised mainly for the purpose of abridging the record and lessening the expense of review. All that it needs to contain is a brief statement of the issues in the case, and so much of the evidence or proceedings as is necessary to a full understanding of the errors assigned. But even in a case-made the pleadings or a statement of what the issues in the case were should be included. (Shumaker v. O'Brien, 19 Kan. 476.) When the other method of bringing a case up for review is employed, the plaintiff in error cannot shorten the record at his option. The authenticated transcript attached to the petition in error must be a copy of the whole record. It must be a transcript of all that is legally a part of the record in the court below; and what the record shall consist of is pointed...