Snyder v. Moon
| Decision Date | 16 June 1897 |
| Docket Number | 210 |
| Citation | 5 Kan.App. 447,49 P. 327 |
| Parties | J. H. SNYDER v. W. C. MOON AND MARY MOON |
| Court | Kansas Court of Appeals |
June 16, 1897.
Error from Jewell District Court. Hon. Cyrus Heren, Judge. Affirmed.
Judgment affirmed.
T. S Kirkpatrick, and Ira F. Hodson, for plaintiff in error.
No appearance for defendants in error.
This is an action brought in the District Court of Jewell County by the plaintiff in error as plaintiff below, to recover a judgment upon a certain promissory note to Hulbert Brothers.
The defendant plead payment thereof at the place of payment therein specified to the payee therein named. Judgment was rendered for the defendant and the case is brought here for review.
The first matter demanding our attention herein is the motion of the defendant in error to dismiss these proceedings for the following reasons:
First. That said pretended case-made does not contain all of the evidence adduced in the trial of said case in the court below. Second. That said pretended case-made does not contain all of the material evidence adduced in the trial of the cause in the court below. Third. That it does not appear that said pretended case-made was settled and signed as is provided by law. Fourth. That it does not appear that, at the time of the settling and signing of the aforesaid pretended case-made, that defendant in error was represented in person or by counsel. Fifth. That it does not appear that said pretended case-made was settled and signed within the time provided by law and allowed by the court. Sixth. That said pretended case-made is not in due form of law.
In answer to reasons one and two, we think that the record does affirmatively show that all the evidence is embodied therein. On page six it shows the appearance of the parties, the waiver of a jury and an agreement to try the case before the court. It then says, "Whereupon the following proceedings were had;" then follows a copy of the agreements, stipulations and evidence, followed on page seventeen with the statement, "Whereupon both the plaintiff and defendant rested their case." We think this negatives any presumption that other evidence may have been either offered or received.
It is urged upon the other grounds for dismissal that, as the words "amendments suggested as hereto attached" appear by interlineation in the acknowledgment of service, and no amendments are attached and there is nothing to show that any were acted upon, the case-made is defective.
We do not think this position is tenable. That paper shows no appearance of anything having been detached therefrom. It is immediately followed by an agreement of the parties that the case should be settled and signed on the first day of March, 1895, term of the District Court of Jewell County, Kansas, or as soon thereafter as the court could hear it, and no showing is made except by the interlineation in the record that any amendments were suggested. The court certified that none were in fact suggested, and that the parties agreed that the case should be settled and signed at said time. The motion to dismiss must be overruled.
This brings us to the merits of the case. The defendants in error have filed no brief upon the merits of the case. This may mean that they fully expected their motion to dismiss would be sustained, or, that they had nothing to say on the merits of the case. And at this point we...
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