The Leavenworth v. Whitaker

• Decision Date: 01 July 1889
• Court: Kansas Supreme Court
• Parties: THE LEAVENWORTH, NORTHERN & SOUTHERN RAILWAY COMPANY v. JOSEPH WHITAKER

22 P. 733

42 Kan. 634

THE LEAVENWORTH, NORTHERN & SOUTHERN RAILWAY COMPANY v. JOSEPH WHITAKER

Supreme Court of Kansas

July 1, 1889

Error from Leavenworth District Court.

THE opinion states the material facts.

Judgment affirmed.

Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error.

L. B & S. E. Wheat, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

Joseph Whitaker appealed from the award of commissioners condemning a right-of-way for the Leavenworth, Northern & Southern Railway Company through certain lots owned by him in an addition to the city of Leavenworth. Trial had at the December term of the court for 1887. Judgment was rendered for Whitaker for $ 1,812.37. The railway company excepted, and brings the case here. Whitaker has filed two motions -- one to strike from the files the case-made, and the other to dismiss this proceeding. The petition in error, with a small part of the transcript, was filed in this court on February 23, 1888. The case-made was not settled and signed until July 16, 1888. It was filed in this court on July 20, 1888. At that time the railway company filed its motion for leave to attach the case -made to the petition in error.

We think the motions of Whitaker must be overruled, as the motion to amend the petition in error was filed before the expiration of the year in which the company had the right to commence its proceeding to review the judgment of the trial court. (Civil Code, §§ 139, 556.)

For good cause shown and in furtherance of justice, this court has the power to allow a petition in error to be amended. The motion to amend, by attaching the case-made to the petition in error, will therefore be sustained.

Upon the record as amended and completed, we cannot decide whether there were "any errors of law occurring on the trial," because of the omission in the motion for a new trial. The motion stated that the verdict was not sustained by sufficient evidence, and that it was procured by the fraud of the prevailing party. This and nothing more. No complaint was made of "any error of law occurring at the trial;" all such errors not referred to in the motion must be considered as having been waived. (Nesbit v. Hines, 17 Kan. 316; City of Atchison v. Byrnes, 22 id. 65; Clark v. Imbrie, 25 id. 424.)

The principal errors complained of by the railway company concern the instructions that were given to the jury. If these instructions were erroneous, they were "errors of law occurring at the trial," and the attention of the trial court should have been called to them in the motion for the new trial. This was not done. Hence, no complaint can now be made of the instructions in this court.

In the judgment which was rendered it was provided that the railway company should pay the damages assessed, of $ 1,812.37 within thirty days after the rendition of the judgment, in order to entitle it to the continuous use of its right-of-way through the lots owned by Whitaker. We do not think that this order was within the issues in the case, or...