The Joseph Schlitz Brewing Company v. Duncan

• Decision Date: 18 December 1897
• Docket Number: 293
• Citation: 51 P. 310,6 Kan.App. 178
• Parties: THE JOSEPH SCHLITZ BREWING COMPANY v. HOWARD DUNCAN, a minor
• Court: Kansas Court of Appeals

51 P. 310

6 Kan.App. 178

THE JOSEPH SCHLITZ BREWING COMPANY v. HOWARD DUNCAN, a minor

No. 293

Court of Appeals of Kansas, Northern Department, Eastern Division

December 18, 1897

December 18, 1897.

Error from Wyandotte Court of Common Pleas. Hon. T. P. Anderson Judge. Reversed.

Judgment reversed and new trial ordered.

McGrew Watson & Watson, for plaintiff in error.

E. A Enright, for defendant in error.

OPINION

WELLS, J.

This action was originally brought in the Court of Common Pleas of Wyandotte County by the defendant in error, against the plaintiff in error, to recover damages alleged to have been sustained by the plaintiff below by being run over by the wagon of the defendant. The case was tried to the court and a jury, and the jury returned a general verdict for the plaintiff for one thousand dollars, and also answered special questions of fact submitted to them on behalf of the defendant. This verdict was approved by the court, judgment rendered accordingly, and the case regularly brought here for review.

It is first insisted by the defendant in error that this court should not review the alleged errors, because the record does not affirmatively show that the motion for a new trial was filed during the same term of court at which the verdict was returned and judgment rendered thereon. The record shows that the verdict was returned on March 14, 1894, and judgment rendered thereon the same day. The motion for a new trial was filed the next day, March 15, 1894, and overruled April 7, 1894. It was held in this court in Dudley v. Barney (4 Kan.App. 122, 46 P. 178), that this court will take judicial notice of the commencement of the terms of court, but cannot take judicial notice of the length of the term. This court will, then, take judicial notice that the terms of the court below commence on the first Monday of February, the first Monday of May, the first Monday of September, and the first Monday of November; and as the record shows that the court was in session on April 7, 1894, we must conclude as a matter of fact that the February term thereof was not closed at that time, as the next term did not commence until the first Monday of May.

Defendant in error next insists that the alleged errors should not be reviewed by this court because the plaintiff in error has failed to comply with rule six of this court, in that his brief fails to contain "a concise abstract or statement of the case, presenting succinctly the questions involved," and fails to contain a "clear statement of the points of law or fact to be discussed, with references to the pages of the record, and the authorities relied upon in support of each point." This rule seems to be a stumbling-block in the way of many attorneys practicing in the Appellate Courts of Kansas. It was not adopted for any other purpose than to assist in expeditiously, accurately and thoroughly reviewing the cases demanding attention. It would seem that each attorney, upon carefully thinking of the matter, would see that the more plainly and succinctly the real question or questions in controversy can be presented to the reviewing court, with everything carefully eliminated that will not throw light upon those questions, the more easily and accurately will they be decided. In the press of business during the trial, or the hurried preparation of a case for settlement, this is often impossible; but in preparing the brief it generally can, and should, be attended to, so that the reviewing court can see at once the questions at issue, and devote its time and energies to solving them instead of hunting them up; and if the plaintiff in error fails to observe the rule, he need not be surprised, or complain, if the court fails to review or discuss questions not clearly raised or upon which no authorities are cited, or errors not specifically pointed out. The attorneys for the plaintiff in error in this case are not as much subject to criticism in this respect as many attorneys who practice in this court, and we shall consider the grounds of error, as far as appears to be necessary, in the order as set up in their brief.

It is first complained that the father of the boy, being asked "What is the appearance of that leg since the time of the accident?" answered, "Well it is just as he walks, as I said. He walks on his toes; he can't get his heel to the floor." ...