State v. Webb

• Decision Date: 10 February 1886
• Citation: 9 P. 770,34 Kan. 710
• Parties: THE STATE OF KANSAS, ex rel. Isaac Morris, v. W. C. WEBB, as Judge of the Superior Court of Shawnee County
• Court: Kansas Supreme Court

9 P. 770

34 Kan. 710

THE STATE OF KANSAS, ex rel. Isaac Morris, v. W. C. WEBB, as Judge of the Superior Court of Shawnee County

Supreme Court of Kansas

February 10, 1886

Decided January, 1886.

Original Proceedings in Mandamus.

PETITION filed in this court, February 10, 1886, by The State, ex rel. Isaac Morris, for a peremptory writ of mandamus requiring the defendant judge of the superior court of Shawnee county to try the case of the petitioner against Bertha Lahmer.

Writ of Mandamus granted.

H. H. Harris, for petitioner.

OPINION

PER CURIAM.

It appears from the record in this case, that judgment was rendered in favor of the defendant and against the plaintiff on October 21, 1884, in the district court of Shawnee county; that upon the verbal motion of plaintiff, the court instantly vacated and set the judgment aside and continued the cause for trial upon its merits. To this order there was no objection or exception taken by any of the parties to the action. Thereafter, with the acquiescence of the court and all the parties, the action was pending and undetermined in the district court. Subsequently the case was transferred to the superior court, under the provisions of the statute. The superior court declines to entertain jurisdiction of the cause, upon the ground that the judgment of October 21, 1884, was a final determination of the rights of the parties, and that under the circumstances of this case the district court had no power to vacate the judgment. We think the parties to the action are entitled to have that court hear and determine the same; therefore, a peremptory writ of mandamus will be granted. (Laws of 1885, ch. 120; Laws of 1885, ch. 140; Ex parte Bradstreet, 32 U.S. 634, 8 L.Ed. 810; Ex parte Schollenberger, 96 id. 369.)