State v. Linderholm

• Decision Date: 11 October 1913
• Docket Number: 18,323
• Parties: THE STATE OF KANSAS, Appellee, v. JUSTUS B. LINDERHOLM, Appellant
• Court: Kansas Supreme Court

135 P. 564

90 Kan. 489

THE STATE OF KANSAS, Appellee, v. JUSTUS B. LINDERHOLM, Appellant

No. 18,323

Supreme Court of Kansas

October 11, 1913

Decided July, 1913.

Appeal from McPherson district court; CHARLES E. BRANINE, judge.

Rulings motions affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. JOURNAL ENTRIES--Duty of Clerk to Record all Judgments Decrees and Orders of the Court. It is the duty of the clerk of the district court to keep a journal and to record thereon all judgments, decrees, and orders of the court. All that is necessary is that the journal recite correctly the judgment of the court, no matter how or from what source the clerk may have obtained the form used in making the entry. If a dispute arises between counsel as to what was decided or adjudged the court is the final arbiter, and if for any reason the record fail to speak the truth, it is the duty of the court and it has power at any time to order the record changed and corrected.

2. Prepared by Opposing Counsel Not Official Record. The customary practice by which the opposing counsel agree upon the form which the clerk shall use in recording upon the journal a judgment, decision, or order of the court, has the advantage of preventing disputes over what the terms of the order or judgment are; but even when signed by counsel, or approved by the court, the paper itself is not the record; and there is no provision of law authorizing it to be filed among the papers. It becomes a mere form for the convenience of the clerk in making up the record.

3. Same. In this case it is held that since it was not necessary that such a paper be either filed with the clerk or approved by any person, appellant lost nothing by having no opportunity to be heard when it was approved.

4. RECORD OF LUNACY--Refusal to Strike from Files--Not a Final Order--Not Reviewable. In the trial of an appeal from the probate court in a lunacy proceeding the refusal of the court to strike from the files a statement in lunacy certified up from the probate court is not a final order, and error can not be predicated thereon. Especially is this true, where the order refusing to strike was made long after the rendition of the judgment.

5. LUNACY--Person Adjudged Insane--Can Not be Discharged by District Court on Motion. In a proceeding in the probate court appellant was adjudged insane. On appeal to the district court the same judgment was entered, which was afterwards affirmed by the supreme court. Held, that the district court had no jurisdiction thereafter to entertain a motion for his discharge on the ground that since the judgment he had been restored to mental health.

John F. Hanson, of Lindsborg, for the appellant.

J. M. Grattan, county attorney, for the appellee; G. F. Grattan, of McPherson, of counsel.

OPINION

PORTER, J.:

The appellant was adjudged insane by the probate court of McPherson county. He appealed to the district court, with the same result, and was ordered sent to the state hospital. On appeal the judgment was affirmed. (The State v. Linderholm, 84 Kan. 603, 114 P. 857.) This is an appeal from subsequent orders of the court overruling a motion to strike certain papers from the files and to discharge appellant. The first of these motions was filed September 5, 1910, and reads:

"Comes now the said Justus B. Linderholm, by his attorney, John F. Hanson, and moves the said court:

"First. To strike from the files a purported journal entry of a trial of said cause in the March term, 1909, of said court, filed April 16, 1909, for the reason that the same was not signed by the attorney for the said Justus B. Linderholm; for the further reason that the same has not been approved by the court according to Rule No. 7 of this court; for the further reason that the supposed approval of said journal entry at chambers was without any notice to or opportunity for the said Justus B. Linderholm or his attorney to be heard.

"Second. To strike from the files a purported statement in lunacy in the insanity of Justus B. Linderholm, purported to be filed about March 20, 1909, because the same is no part of any proceeding had in this court or any paper to be filed as of that date and has no right to such filing.

JOHN F. HANSON,

Attorney for Justus B. Linderholm."

The motion for appellant's discharge was filed December 30, 1911, and reads:

"Comes now the said Justus B. Linderholm and moves the said court as follows:

"First. That, whereas, nearly two years have elapsed since the trial of this case, that the said Justus B. Linderholm be not adjudged to be committed to any hospital or put under any restraint whatever, unless a new inquiry be had, and where there is a finding of insanity; that the said Justus B. Linderholm have his costs herein so far made, and if no new finding of insanity be found, or no new inquiry is desired, that he be discharged without day and have all his costs.

"Second. That, whereas, since the previous finding of insanity in said matter the said Justus B. Linderholm has been kidnapped and placed in the Topeka State Hospital for the insane under an irregular order of commitment from the probate court of this county, where he or his attorney was not present, and who had no jurisdiction because this court had not yet passed on that question, and after being so committed and unlawfully held, or subject to said order, he was, on the 1st day of June, 1911, by the superintendent of said hospital, discharged from all restraint as being able to care for himself, and by reason of said commitment and release the proceeding herein is terminated before final judgment of commitment by this court, and, therefore, the said Justus B. Linderholm should be discharged without day and have his costs.

JOHN F. HANSON,

Attorney for Respondent."

Rule No. 7 of the district court of McPherson county, to which reference is made in the first motion, provides as follows:

"Service of process, publication notices, and drafts of journal entries will not be approved except in cases of such entries as counsel do not agree upon."

All presumptions are in favor of the regularity of the proceedings, and it will be assumed that the journal entry was approved in accordance with the foregoing rule, and doubtless it was so approved because opposing counsel for some reason had failed to agree upon the form in which the judgment should be entered. There is, however, no statute or rule of law requiring such a paper to be approved by counsel or even to be filed. It is the duty of the clerk to keep a journal in which all orders of the court are...