The Mechanics' Savings Bank v. Harding, 12,741

CourtUnited States State Supreme Court of Kansas
Writing for the CourtGREENE, J.:
PartiesTHE MECHANICS' SAVINGS BANK v. H. B. HARDING
Docket Number12,741
Decision Date08 November 1902

70 P. 655

65 Kan. 655

THE MECHANICS' SAVINGS BANK
v.

H. B. HARDING

No. 12,741

Supreme Court of Kansas

November 8, 1902


Decided July, 1902.

Error from Montgomery district court; A. H. SKIDMORE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, SUPREME COURT -- Summons in Error. A summons in error, issued within time, may be served on the attorney of record in the original case notwithstanding it does not contain the name of such attorney, the same being sufficiently formal in all other respects.

2. PRACTICE, SUPREME COURT -- Presumption as to Time of Filing Motion for New Trial. Where the record shows that the verdict was returned and judgment entered June 26, and on June 27 the motion for a new trial was filed, which was considered by the court and overruled, and there is nothing in the record indicating that the motion was not filed at the term at which the judgment was rendered, or that it was overruled because not so filed, this court will not presume that it was not filed at such term.

3. PRACTICE, SUPREME COURT -- Petition in Error Filed Later than One Year. If a petition in error is not filed in this court within one year from the return of the verdict and the rendition of the judgment thereon, but is filed within one year from the time the motion for a new trial was overruled, this court can only review such alleged errors as are involved in the motion for a new trial.

4. PRACTICE, SUPREME COURT -- Error of Law Occurring at the Trial. An alleged error in overruling a demurrer to a petition is not an error of law occurring at the trial, and, therefore, cannot be reviewed by this court unless the petition in error was filed within one year from the rendition of the judgment.

5. EVIDENCE -- Objection Must be Specific. An objection to the introduction in evidence of an unauthenticated judgment, that it is incompetent, irrelevant, and immaterial, is not sufficiently specific to call the attention of the court to its defective certification or its entire want of certification, and it is not error for the court to overrule such objection.

T. S. Salathiel, for plaintiff in error.

S. S. Kirkpatrick & Son, for defendant in error.

GREENE, J. All the Justices concurring.

OPINION

[65 Kan. 656] GREENE, J.:

The defendant in error recovered judgment against the Bank of Le Roy, Kansas. During the life of the judgment, but more than ten years after the cause of action accrued against the stockholders of the bank, the defendant in error commenced the present action, seeking to hold the plaintiff in error, a banking corporation of Rhode Island, as a stockholder in the Bank of Le Roy. To avoid the statute of limitations, the petition contained the following allegations:

"That it, the said Mechanics' Savings Bank, of Westerly, Rhode Island, is a corporation, duly organized under the laws of the state of Rhode Island, and has its domicile at Westerly, in said state, and has been so incorporated for more than fifteen years last past, and during its entire existence has been a resident and citizen of the state of Rhode Island, never having a place of business, domicile or residence in the state of Kansas."

Judgment was for plaintiff and defendant prosecutes error.

[65 Kan. 657] The defendant in error moves to dismiss this cause on jurisdictional grounds. His first contention is overruled, on the authority of Railway Co. v. Morris, ante, p. 532, 70 P. 651.

The summons in error commanded the sheriff to summon the defendant, but did not include the name of the attorney of record in the original case, and was served on such attorney. Counsel contend that the officer is limited in the service of process to the recitals therein, and that such service gave this court no jurisdiction of the defendant in error. Section 544 of the code (Gen. Stat. 1901, § 5028) provides:

"A service on the attorney of record in the original case shall be sufficient. The summons shall notify the adverse party that a petition in error has been filed in a certain case,...

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13 practice notes
  • Thex v. Shreve, 1427
    • United States
    • United States State Supreme Court of Wyoming
    • May 8, 1928
    ...the other party who should have an opportunity to remedy the defect, if that can be done. See, also, Mechanics' Savings Bank v. Harding, 65 Kan. 655, 70 P. 655 (transcript of foreign judgment); City of Chicago v. Gilsdorff, 258 Ill. 212, 101 N.E. 546; Graves v. Bonness, 97 Minn. 278, 107 N.......
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • March 9, 1908
    ...45 Kan. 474; Dyal v. Topeka, 35 Kan. 62; Osbourne v. Young, 28 Kan. 769; Shattuck v. Board, 63 Kan. 849; Mech. Savings Bank v. Harding, 65 Kan. 655; Blockwood v. Shaff (Kan.), 24 P. 423; McCrea v. McCrew, 9 Idaho, 382; Smith v. State, 48 Ark. 149; Dowty v. Pepple, 58 Ohio St. 395; Young v. ......
  • Springfield Fire & Marine Ins. Co. v. Gish, Brook & Co., Case Number: 273
    • United States
    • Supreme Court of Oklahoma
    • May 12, 1909
    ...of his name in the summons is not essential to the validity of either the summons or the service of the same upon him (Bank v. Harding, 65 Kan. 655, 70 P. 655), and the insertion of his name in the summons, where the name of the defendants in error are entirely omitted, is sufficient to cur......
  • Cunningham v. Smith, 32787.
    • United States
    • United States State Supreme Court of Kansas
    • January 25, 1936
    ...of the courts of appeals such provisions became operative." This ruling was specifically followed and approved in Bank v. Harding, 65 Kan. 655, 657, 70 P. 655, and in Johnson v. State, 66 Kan. 111, 113, 71 P. 267. The rule there announced is particularly fitting here. Chapter 186, Laws 1933......
  • Request a trial to view additional results
13 cases
  • Thex v. Shreve, 1427
    • United States
    • United States State Supreme Court of Wyoming
    • May 8, 1928
    ...the other party who should have an opportunity to remedy the defect, if that can be done. See, also, Mechanics' Savings Bank v. Harding, 65 Kan. 655, 70 P. 655 (transcript of foreign judgment); City of Chicago v. Gilsdorff, 258 Ill. 212, 101 N.E. 546; Graves v. Bonness, 97 Minn. 278, 107 N.......
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • March 9, 1908
    ...45 Kan. 474; Dyal v. Topeka, 35 Kan. 62; Osbourne v. Young, 28 Kan. 769; Shattuck v. Board, 63 Kan. 849; Mech. Savings Bank v. Harding, 65 Kan. 655; Blockwood v. Shaff (Kan.), 24 P. 423; McCrea v. McCrew, 9 Idaho, 382; Smith v. State, 48 Ark. 149; Dowty v. Pepple, 58 Ohio St. 395; Young v. ......
  • Springfield Fire & Marine Ins. Co. v. Gish, Brook & Co., Case Number: 273
    • United States
    • Supreme Court of Oklahoma
    • May 12, 1909
    ...of his name in the summons is not essential to the validity of either the summons or the service of the same upon him (Bank v. Harding, 65 Kan. 655, 70 P. 655), and the insertion of his name in the summons, where the name of the defendants in error are entirely omitted, is sufficient to cur......
  • Cunningham v. Smith, 32787.
    • United States
    • United States State Supreme Court of Kansas
    • January 25, 1936
    ...of the courts of appeals such provisions became operative." This ruling was specifically followed and approved in Bank v. Harding, 65 Kan. 655, 657, 70 P. 655, and in Johnson v. State, 66 Kan. 111, 113, 71 P. 267. The rule there announced is particularly fitting here. Chapter 186, Laws 1933......
  • Request a trial to view additional results

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