Nowland v. The City of Horace

• Decision Date: 01 October 1898
• Docket Number: 261
• Parties: OTHO NOWLAND v. THE CITY OF HORACE
• Court: Kansas Court of Appeals

54 P. 919

8 Kan.App. 722

OTHO NOWLAND v. THE CITY OF HORACE

No. 261

Court of Appeals of Kansas, Southern Department

October 1, 1898

Opinion Filed October 20, 1898.

Error from Greeley district court; J. E. ANDREWS, judge. Dismissed.

Proceedings in error dismissed.

W. M Glenn, for plaintiff in error.

V. H Grinstead, and George L. Reid, for defendant in error.

OPINION

MILTON, J.:

The petition in error in this case was filed on March 15, 1897. The first paragraph reads:

"That in the trial of this action in the district court the court erred in rendering judgment in favor of the defendant upon the second count of the petition of the plaintiff, and in not rendering judgment in favor of the plaintiff upon said second count."

Other paragraphs allege various errors respecting the second count of the plaintiff's petition for his second cause of action. The prayer of the petition is as follows:

"Plaintiff therefore asks that said judgment of the district court upon said second count in plaintiff's petition may be reversed, and said cause remanded to the district court of Greeley county for a new trial of said second count in plaintiff's petition."

From the purported case-made, which is attached to the petition in error, but not referred to therein, it appears that on July 2, 1895, an action was begun in the district court of Greeley county by Otho Nowland against the city of Horace. The petition set forth two causes of action on warrants of the defendant city -- the first on a warrant in the sum of 125 and interest, and the second on a warrant of $ 50 and interest. The judgment of the court was in favor of the plaintiff on the second cause of action, and in favor of the defendant for costs on the first cause of action. The defendant in error has moved to dismiss the proceedings in error, and the plaintiff in error has asked leave to amend the petition in error by substituting the word "first" for the word "second" wherever the latter occurs therein. In his brief the plaintiff in error has made two specifications of error, both of which relate to the action of the court in respect to the "first count" of the petition filed in the trial court.

It is claimed by the defendant in error that the petition in error is fatally defective because it fails to refer to or identify the judgment of which a review is sought. While the petition in error is very informal and incomplete in this regard, we think it can be ascertained from the prayer thereof that complaint is made of a certain judgment rendered by the district court of Greeley county. It is also claimed that the failure to identify the case-made by some reference thereto in the petition in error rendered the latter invalid. This must be regarded as an amendable defect.

The petition in error complains of the action of the court in rendering judgment for the defendant on the "second count" of the petition and in overruling the motion of plaintiff for a new trial...