Newby v. Myers

• Decision Date: 11 October 1890
• Citation: 24 P. 971,44 Kan. 477
• Parties: D. NEWBY et al. v. S.E. MYERS
• Court: Kansas Supreme Court

24 P. 971

44 Kan. 477

D. NEWBY et al. v. S.E. MYERS

Supreme Court of Kansas

October 11, 1890

Error from Elk District Court.

THE facts are stated in the opinion.

Judgment reversed and cause remanded.

R. H Nichols & Jackson, for plaintiffs in error.

L Scott, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

On the 28th day of December, 1887, S.E. Myers filed his petition against N. Davis, D. Newby and C.W. Bogue, to recover $ 1,244.65 upon a promissory note, payable to his order, dated March 8, 1887, and alleged to have been executed by N. Davis, D. Newby, and C. W. Bogue. The defendants, D. Newby and C. W. Bogue, filed their separate answers, duly verified, alleging they never signed or executed the note described in the petition, and also alleging they never authorized anyone to sign their names for them. Trial had before the court, at the February term, 1888, a jury being waived. The court, after hearing the evidence and the arguments of counsel, made and filed the following findings of fact:

"1. The defendants, D. Newby and C. W. Bogue, did not, nor did either of them, sign the promissory note described in plaintiff's petition; nor did said defendants, or either of them, authorize any person to sign the name or names of Newby and Bogue, or either of them, to the promissory note.

"2. The defendant, D. Newby, by his acts and conduct in regard to the promissory note, is estopped from denying the execution of the same, and is liable thereon.

"3. The defendant, C. W. Bogue, with full knowledge that he had not signed the promissory note, upon presentation thereof to him, ratified and adopted the execution thereof, as his own act, and by reason of his conduct and acts in regard to the note, is estopped from denying his liability on the note, and he is liable thereon."

Subsequently, upon the findings of fact, the court rendered judgment in favor of the plaintiff, and against all of the defendants, for $ 1,381.46, and the costs of the action, taxed at $ 139.55. To the rulings of the court, to the second and third findings of fact, and the judgment rendered, the defendants, D. Newby and C. W. Bogue, excepted, and bring the case here.

As the first finding of fact by the trial court was favorable to Newby and Bogue, that finding is not challenged, but it is contended that there is no evidence in the record sustaining or tending to sustain, the other findings. The certificate of the judge who settled the case-made stated that it contains all of the evidence offered upon the trial of the cause, excepting the evidence offered to prove or disprove the genuineness of the signatures of Newby and Bogue to the promissory note sued on. A like statement is contained in the notice served by Myers upon Newby and Bogue at the time the case-made was handed to their attorney. This notice also requested Newby and Myers to suggest amendments to the case, as permitted by the statute. It is not stated in the case-made that it contains all the evidence introduced upon the trial upon the controverted issues. As the court found against Myers and in favor of Newby and Bogue against the genuineness of their signatures, it was unnecessary for the evidence upon this matter to be embraced in the record brought to this court, provided all the other material evidence was in the record.

A statement in a certificate of the judge, or in the notice served with the case, but which is no part of the case, is insufficient.

In order to have the question whether the evidence supports the findings and judgment examined, the case-made should show that it contains all the evidence. (Eddy v. Weaver 37 Kan. 540; Railroad Co. v. Grimes, 38 id. 241; Bartlett v. Feeney, 11 id. 594; Brown v. Johnson, 14 id. 377; Insurance Co. v. Hogue, 41 id. 524; same case, 21 P. Rep. 641.) Therefore the evidence offered upon the trial is not before us for our consideration. The record, however, discloses objections made to...