Spencer v. McClenney
| Decision Date | 11 January 1919 |
| Docket Number | 21,857 |
| Citation | 104 Kan. 107,178 P. 253 |
| Parties | GUY A. SPENCER, Appellee, v. HENRY MCCLENNEY, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1919.
Appeal from Sheridan district court; CHARLES I. SPARKS, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. VACATION OF JUDGMENT -- Statutory Grounds Therefor -- Loss of Stenographer's Notes. Statutory provisions authorizing the setting aside of a judgment for mistake, neglect or omission of the clerk, or irregularity in obtaining it, or for unavoidable casualty or misfortune preventing the party from prosecuting or defending, refer wholly to the proceedings leading up to the judgment, and have no application to matters taking place after its rendition, such as the loss of the reporter's notes of the evidence.
2. SAME--Statement of Evidence Approved by Trial Judge. Where the stenographer's notes of the evidence have been lost a statement approved by the trial judge may be used on appeal in lieu of a transcript thereof, although the statute makes express provision for such substitute only in case of the stenographer's death or disability.
C. L. Thompson, of Hoxie, for the appellant.
G. A. Spencer, A. R. Buzick, jr., both of Salina, and W. H. Clark, of Hoxie, for the appellee.
Guy A. Spencer brought an action against Henry McClenney on two promissory notes. McClenney defended on the ground that the notes had been given in pursuance of an agreement, which had not been performed, to render professional services. Upon a trial the court directed a verdict for the plaintiff, upon which judgment was rendered June 2, 1915. The defendant appealed to this court, and on April 26, 1917, filed a motion to remand the cause for a new trial on the ground that he could not present his appeal because the reporter's notes of the proceedings in the district court had been lost. The motion was denied, and the appeal was dismissed because of the failure of the appellant to prepare and file an abstract. The defendant then filed in the district court a petition for a new trial on account of the loss of the reporter's notes. A demurrer to this petition was sustained, and the defendant again appeals.
1. The defendant contends that his present action is authorized by the statute which provides for the setting aside of a judgment:
"Third, for mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order."
. . . .
"Seventh, for unavoidable casualty or misfortune preventing the party from prosecuting or defending." (Gen. Stat. 1915, § 7500.)
It is obvious that these provisions refer wholly to the proceedings leading up to the judgment sought to be vacated, and have no application to matters taking place after its rendition. This consideration is fatal to the defendant's contention and requires an affirmance.
2. Where the hearing of an appeal on its merits is prevented by the...
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State v. Jefferson, 45320
...The burden is on the appealing party to initiate the necessary proceedings to reconstruct a secondary record. (Spencer v. McClenney, 104 Kan. 107, 178 P. 253; State v. Allen, 111 Kan. 3, 206 P. 340; Addington v. State, 198 Kan. 228, 424 P.2d The 'rough accommodations' referred to by the hig......
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Caldwell v. Gayhart
... ... Anderson, 85 Kan. 867, 118 P. 879; Readicker v ... Denning, 86 Kan. 79, 119 P. 533; Davidson v ... Timmons, 88 Kan. 553, 129 P. 133; Spencer v ... McClenney, 104 Kan. 107, 178 P. 253.) ... An ... attack is made on the instructions of the court, but because ... of the ... ...
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State v. Bennell
...witness also answered this question in the affirmative." Although not strictly in point, the following quotation from Spencer v. McClenney, 104 Kan. 107, 178 P. 253, 254, is instructive: "The statute provides that, in case the death or disability of the stenographer before transcribing his ......