State v. Sowders

• Decision Date: 05 October 1889
• Citation: 22 P. 425,42 Kan. 312
• Parties: THE STATE OF KANSAS, on the relation of Osie Minard, v. PETER L. SOWDERS et al
• Court: Kansas Supreme Court

22 P. 425

42 Kan. 312

THE STATE OF KANSAS, on the relation of Osie Minard, v. PETER L. SOWDERS et al

Supreme Court of Kansas

October 5, 1889

Error from Shawnee District Court.

ACTION by The State to recover upon a bond given in a certain bastardy proceeding. The material facts are stated in Sowders v. The State, 37 Kan. 209, and in the opinion herein, filed October 5, 1889.

Judgment affirmed.

R. B Welch, county attorney, and Wm. R. Hazen, for plaintiff in error.

Overmyer & Safford, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This case was here before upon a demurrer to the second count of the answer, and reversed. (37 Kan. 209.) After the mandate of this court was received by the court below, the plaintiff filed a reply to the defendants' answer, and upon the issues joined trial was had. Judgment was rendered for the defendants, upon the authority of McGarry v. The State, 37 Kan. 9.

Of this, complaint is made. It is contended upon the part of the state that, as Peter L. Sowders was not present when the action against him was called for trial, and as his recognizance was forfeited and judgment rendered in his absence, the case was then closed, and the court lost all further jurisdiction. Further, it is contended that after the judgment was rendered, Sowders's liability became fixed by the judgment, and that he could not surrender himself into the custody of the court to suffer the consequences of the judgment.

It appears from the record that the action against Sowders was called for trial in the forenoon of the 18th day of September, 1885, and the trial had between nine o'clock A. M. and ten o'clock A. M. of that day. In the forenoon, about the time the court adjourned, the attorney of Sowders notified the district judge that Sowders had come into the city, that he had been belated, and was ready to have a trial. The district judge replied he could not hear the matter then, but directed the attorney to see the other parties and have them come into court at two o'clock P.M., and he would see what could be done. The attorney of Sowders at once notified Judge Hazen, the attorney for the relatrix, that an application had been made to have the court set aside the judgment against Sowders, and that it had been set down for hearing at two o'clock P. M. of September 18 -- the same day upon which judgment had been rendered. At two o'clock the defendant with his attorney appeared in court, and Judge Hazen, attorney for the relatrix, also appeared. Sowders voluntarily surrendered himself in person to the court, and the court turned him over to the custody of the sheriff. To all of this the counsel for the relatrix objected, claiming that the court had no right so to do. After the defendant was in actual custody, the court ordered that he be committed to jail until he secured the payment of the judgment rendered against him.

It has been frequently decided by this court that after the testimony has been closed the court has the power on the same day, or at the same term, to open the case and hear further testimony. Of course neither party can insist upon this, as it is a matter within the sound discretion of the court; and its ruling thereon will not be reversed, unless it appears that its discretion has been abused. (Brown v. Holmes, 13 Kan. 482; Cook v. Ottawa University, 14 id. 548; Railroad Co. v. Dryden, 17 id. 278; The State v. Teissedre, 30 id. 476; West v. Cameron, 39 id. 736.)

Again, a party against whom a judgment is rendered by default may, within the sound discretion of the court, have that judgment set aside and be let in to answer. (Gheer v. Huber, 32 Kan. 319.) Further, a trial court, for the purpose of administering justice, has a very wide and extended discretion in setting aside or modifying proceedings had in its own court, if it does so at the same term at which the proceedings were had. (Hemme v. School District, 30 Kan. 377.)

The action of the court on the afternoon of September 18 was in the nature of opening up the case heard and decided in the forenoon, for further proceedings, and this the court had a right to do within its own sound discretion. Both parties appeared by their attorneys in the afternoon, and were heard by the court. No advantage was therefore taken, and no error is apparent in the...