Stevens v. Chapin
| Decision Date | 07 February 1921 |
| Parties | FLOY STEVENS, et al., Respondents, v. OLIVER C. CHAPIN, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Pettis County.--Hon. Hopkins B Shain, Judge.
AFFIRMED.
Judgment affirmed.
George A. Barnett for respondent.
Clarence S. Palmer for appellant.
Plaintiffs' brought suit to cancel three certain special tax bills issued by the city of Sedalia for the paving of a street upon which their three lots abutted. The grounds for the relief sought were: 1. Failure of the resolution declaring the work necessary, to describe the character of the work to be done, or to provide that the cost should be assessed against the abutting property or to disclose the method by which the same was to be paid for. 2. Because there was no competitive bidding, all other contractors except defendant being excluded from bidding because of an agreement in advance as to the price to be paid and that the pavement should be constructed of an unknown kind called "Dolarway pavement," a patented or trade name for pavement constructed by defendant of which he was the sole agent and the only one who could bid on the contract and supply such pavement. 3. Because the ordinance authorizing the work was passed notwithstanding a remonstrance, signed by a majority of the abutting owners, was filed within ten days after the resolution was passed, and the council was without authority to pass such ordinance. 4. Because the pavement was not according to contract or specifications, was worthless, and in a short time disintegrated and gave way so that great sunken places and cracks appeared in the pavement in front of plaintiffs' property in which water collected and stood.
Trial was had on December 27, 1919, and judgment was rendered in plaintiffs' favor on that day. Motion for new trial was duly filed, and, on January 3, 1920, was overruled, and defendant on that day took an appeal with leave to file his bill of exceptions on or before the close of the February term, 1920.
The appeal thus taken was returnable to the October term, 1920, of this Court; and the case has been submitted to us with no bill of exceptions but simply on appellant's motion to reverse the judgment and remand the cause for a new trial for the reason that, on account of the burning of the court house in Sedalia on June 16, 1920, the preparation of a bill of exceptions has been rendered impossible. The question before us is whether, upon the particular facts of this case, appellant is entitled to such order to the end that he may again have his case adjudged with the right of appeal upon a complete record should the decision of the trial court be adverse to him.
From affidavits filed in support of and against the motion the following facts appear:
Upon taking the appeal defendant, who is alleged in the petition to be a non-resident of the State, directed the court stenographer to make a transcript of the evidence and copies of the exhibits used in the trial for the purpose of preparing a bill of exceptions. The stenographer began the work of transcription, and had typewritten about 160 pages thereof when, on account of the magnitude of the work yet to be done and because he had in the past failed to receive his fees for work done on other bills, the stenographer became concerned as to whether he would be paid for this work. He thereupon asked Mr. C. C. Kelly, local counsel for defendant (his chief counsel being Mr. Clarence S. Palmer of Kansas City), if defendant was good and whether he had any property in this State. Mr. Kelly replied he did not know. Mr. Kelly was then asked if he would personally guarantee the payment of such fees and he declined to do so, but promised to write defendant to forward same. The stenographer told Mr. Kelly that if it were not agreeable to pay before the work was done, the money therefor could be deposited in a bank, with the circuit clerk, or with Mr. Kelly himself, until the work was completed. A few days thereafter, Mr. Kelly told the stenographer he had received a letter from defendant, that no money was sent, but that the letter stated there was no hurry about getting out the bill of exceptions as that could be done any time before the abstract for the appellate court had to be printed, and indicated that the stenographer had no need to proceed further with the preparation of the bill at that time. The stenographer thereupon laid aside the work he had done, and did nothing further thereon as he understook he was not expected to until some satisfactory arrangement was made. The stenographer was never thereafter requested to proceed with said work. Had the stenographer been given satisfactory assurance that he would be paid, he would have proceeded with the work and could easily have had it ready by the commencement of the May term, 1920, or sooner if requested.
On June 16, 1920, the court house in Sedalia burned, causing the destruction of the stenographer's notes, the motion for new trial and certain exhibits which were introduced in evidence, as well as that portion of the transcript which the stenographer had prepared. The records and files in the circuit clerk's office were not destroyed, but the stenographer's office, which was in the court house, was burned and everything therein was consumed, including the exhibits and papers in the case, the stenographer's notes and the motion for new trial. On the next day, June 17, 1920, Mr. Kelly, defendant's local counsel, died. The stenographer swears he does not know whether the bill of exceptions, if properly prepared, would have been taken and paid for; and that even if he had prepared the same, it would have remained in his office (and therefore would have been burned) because no request was ever made for the bill of exceptions and no offer was ever made to pay for same.
It further appears, from the affidavit of Mr. George W. Barnett, that had the bill of exceptions been prepared and filed, it would have been preserved in the files and vault of the circuit clerk's office where such papers were kept and would not have been burned; also that if the judgment is reversed and a new trial ordered, plaintiffs will, on another trial, be deprived of much evidence in its favor consisting of documents and correspondence with the city authorities and much other evidence which was introduced on the issues involved.
The affidavit of Mr. Palmer, defendant's chief counsel, shows that he kept no notes of the testimony at the trial, relying upon his ability to have the same transcribed by the stenographer in case it were desired; that several witnesses, more than a half dozen, were examined and gave testimony; that various exhibits were introduced, some of which cannot be produced because of said fire.
There is no showing that any attempt was made to prepare a bill of exceptions, or to agree upon the evidence, either documentary or oral, that was introduced at the trial, or the substance thereof. It is true, the stenographer says he cannot transcribe the testimony and no doubt he cannot; and Mr. Palmer says it is impossible to get up the bill of exceptions owing to the destruction caused by the fire. But, should one side of a cause be permitted to decide for itself that a sufficient bill could not be prepared without making any effort in conjunction with the other side or consultation with the trial judge to ascertain whether or not a bill could be made? From the character of the evidence introduced, it does not appear that it would have been impossible to get up a bill, had such an effort been made. No effort of any kind was made in this direction; no application was made to this court for a continuance of the matter until such effort could be made; and indeed, after calling the stenographer off, there was no subsequent desire manifested that a bill of exceptions would be asked for until after the fire occurred, and then the court is asked to grant a new trial because of the fire.
Under the foregoing circumstances, are we justified in reversing the judgment and ordering a new trial? The right...
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