Stoddard Mfg. Co. v. Columbia Mfg. Co.

• Decision Date: 12 May 1899
• Citation: 57 P. 136,8 Kan.App. 690
• Parties: STODDARD MFG. CO. v. COLUMBIA MFG. CO. et al.
• Court: Kansas Court of Appeals

57 P. 136

8 Kan.App. 690

STODDARD MFG. CO. v. COLUMBIA MFG. CO. et al.

Court of Appeals of Kansas, Southern Department, Central Division

May 12, 1899

Syllabus

1. The construction of the statutes relative to the powers of a judge to settle a case after his term of office expires contained in Waterfield v. Bank, 50 P. 971, 6 Kan.App. 743, and Insurance Co. v. Nichols, 50 P 940, 6 Kan.App. 923, modified.

2. When the term of the trial judge expires before the time fixed for making and serving a case, he should settle the case the same as if his term had not expired; and, if his term expires after the time fixed for making and serving a case, yet if the time for settling a case had been fixed before the expiration of his term, which time did not expire until after the expiration of his term, he should also settle the case. National Mortgage & Debenture Co. v. St. John Marsh Co. (Kan. App.) 54 P. 798.

Error from district court, McPherson county ; Ansel R. Clark, Judge pro tem.

Action by the Stoddard Manufacturing Company against the Columbia Manufacturing Company and Eli P. Williams. Judgment for plaintiff. Defendants bring error. Motion to dismiss overruled.

Geo. W. Allison, for plaintiffs in error.

Grattan & Grattan and Frank O. Johnson, for defendant in error.

OPINION

SCHOONOVER, J.

This case was tried in the district court of McPherson county, before a judge pro tem., on the 16th day of June, 1897, and a verdict rendered for the defendant in error. The motion for a new trial was overruled on the 24th day of June, 1897, and the following order was made by the trial judge: "And thereupon the plaintiff asked and was granted 150 days to make and serve a case-made, and the defendants given 20 days to suggest amendments thereto, and to be settled on 10 days’ notice given by either party; and a stay of execution for 150 days is granted the plaintiff." This order gives 180 days, within which time the case-made must be allowed, settled, and signed. No order extending the time was made, and the case was not allowed, settled, and signed until the 2d day of May, 1898,-more than 120 days after the time given by the court had expired.

The plaintiffs in error contend that the judge pro tem. did not have the power to allow, settle, and sign the case at this time. In the opinion of the writer, the objection is well taken, and supported by the decisions of the supreme court and the former decisions of this court. Missouri, K. & T. Ry. Co. v. City of Ft. Scott, 15 Kan. 478; Weeks v. Medler, 18 Kan. 425; Railway Co. v. Corser, 31 Kan. 706, 3 P. 569; Railway Co. v. Wright, 53 Kan. 272, 36 P. 331; Railroad Co. v. Leeman, 5 Kan.App. 804, 48 P. 932; Waterfield v. Bank, 6 Kan.App. 743, 50 P. 971; Rhoades v. Rhoades, 6 Kan.App. 739, 50 P. 972; Insurance Co. v. Nichols, 6 Kan.App. 923, 50 P. 940. This last case was certified to the supreme court, and the order of this court dismissing the case affirmed. 55 P. 1101.

In the case of National Mortgage & Debenture Co. v. St. John Marsh Co. (Kan. App.) 54 P. 798, the former decisions of this court are reviewed, and the conclusions of the majority stated by the presiding judge as follows: "In Waterfield v. Bank, 6 Kan.App. 743, 50 P. 971, and Insurance Co. v. Nichols, 6 Kan.App. 923, 50 P. 940 both of which are cases similar to this, we have held that the judge had no authority to settle the case-made. A careful re-examination of the statute and the decisions of the supreme court upon that subject satisfies us that the decisions in those cases are erroneous. The statute reads: ‘When the term of office of the trial judge shall have expired or may hereafter expire before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his term had not expired.’ Code Civ. Proc. § 549. We are now of the opinion that the proper construction of this statute is that, when the term of the trial judge expires before the time fixed for making and serving a case, he should settle the case the same as if his term had not expired; and, if his term expires after the time fixed for making and serving a case, yet...