Staples v. Rogers

• Decision Date: 15 December 1897
• Docket Number: 116
• Citation: 51 P. 315,6 Kan.App. 910
• Parties: A. B. NEWLIN AND J. H. STAPLES v. SAMPSON ROGERS
• Court: Kansas Court of Appeals

51 P. 315

6 Kan.App. 910

A. B. NEWLIN AND J. H. STAPLES v. SAMPSON ROGERS

No. 116

Court of Appeals of Kansas, Southern Department, Western Division

December 15, 1897

December 15, 1897.

Error from Kiowa District Court. Hon. W. O. Bashore, Judge. Reversed.

Judgment reversed and case remanded.

J. W Davis, for plaintiffs in error.

L. M Day, E. A. Fisher and W. H. Vernon, for defendant in error.

OPINION

DENNISON P. J.

A motion has been filed in this case to strike the case-made from the files of this court. It is claimed that two pages have been abstracted from the case-made and two other pages inserted therein since the case-made was settled by the trial court. The two pages in controversy show that the motion for a new trial was overruled pro forma and recite the judgment of the court.

From the evidence introduced upon the motion to dismiss, we are satisfied that the motion for a new trial was not overruled pro forma. As to whether the case-made contained the present pages at the time it was settled, we are not so certain. Either the judge and the attorneys for the defendant in error failed to closely scrutinize the case-made as to this statement, and assumed that the case-made was correctly made, or some one has abstracted the two pages from the case-made after it was settled. In any event, the case-made does not state the facts and does not contain the journal entry on file in the office of the clerk of the district court of Kiowa County.

The counsel for defendant in error asks to have the case-made stricken from the files, or, in case we do not feel justified in doing this from the showing made, that we permit the record to be amended so as to correspond with the journal entry.

We will decline to consider the error based upon the record as shown by the pages questioned. We will assume that the trial court committed no error in the manner in which it overruled the motion for a new trial, and we will review the other errors complained of. Before leaving this subject, we desire to say that the attorney in this court for the plaintiffs in error, Hon. J. W. Davis, of Greensburg, Kan., is in no way implicated in this transaction. His connection with the case has been such that he is not responsible for the appearance of the questioned pages in the case-made, whether they were placed there at the time the case made was first prepared or after it was served. We deem it justice to him to say that the evidence shows his conduct to have been entirely honorable.

The defendant in error, Sampson Rogers, brought this action in the District Court of Kiowa County, Kansas, to recover from A. B. Newlin and J. H. Staples damages sustained by him by reason of the acts of the defendants in thrashing and hauling from land of which Rogers claimed to be the owner about five hundred bushels of wheat. The petition alleges that Rogers is the owner and in the possession of a certain tract of land, upon which he raised during the years 1891 and 1892 a crop of wheat, which during the summer of 1892 was harvested and stacked by him upon said land; that on September 7, 1892, the defendants, these plaintiffs in error, without the knowledge and consent of said Rogers, thrashed and carried away said wheat and converted it to their own use; that the said defendants, these plaintiffs in error, had no interest or right in the said wheat, it being on land not their own; that the value of the wheat was two hundred and fifty dollars. The prayer of the petition is for damages in the sum of seven hundred and fifty dollars.

Plaintiffs in error filed a motion to require the plaintiff below to make the petition more definite and certain by reciting the elements of damage other than the value of the wheat, upon which five hundred dollars is asked. The court overruled the motion and the plaintiffs in error complain of this ruling. The petition fairly states a case for treble damages under section 1, chapter 113 (P 7157), General Statutes of 1889. The real damage is two hundred and fifty dollars, and treble damages are seven hundred and fifty dollars.

The plaintiffs in error contend that the court erred in refusing to admit competent evidence offered by them, and also in refusing to instruct the jury as requested by them. They also contend that the instructions given by the court were erroneous, and prejudicial to the material rights of said plaintiffs in error. It is not denied by the evidence that Rogers is the owner of the tract of land named in the...