The Missouri v. Murphy

• Decision Date: 07 July 1905
• Docket Number: 14,073
• Citation: The Missouri v. Murphy, 81 P. 478, 71 Kan. 674 (Kan. 1905)
• Court: Kansas Supreme Court
• Parties: THE MISSOURI, KANSAS & NORTHWESTERN RAILROAD COMPANY v. JAMES MURPHY

81 P. 478

71 Kan. 674

THE MISSOURI, KANSAS & NORTHWESTERN RAILROAD COMPANY v. JAMES MURPHY

No. 14,073

Supreme Court of Kansas

July 7, 1905

Decided. July, 1905.

Error from Cherokee district court; THOMAS J. FLANNELLY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

PRACTICE SUPREME COURT--Petition in Error. In a proceeding in error in this court to vacate a judgment of the district court the petition in error must set forth the errors complained of, as directed by section 544 of the civil code (Gen. Stat. 1901, sec. 5028), and none other will be considered.

T. N. Sedgwick, R. W. Blue, W. W. Brown, and Joseph M. Bryson, for plaintiff in error.

Sapp & Wilson, for defendant in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.

Failing in its effort to lodge in this court a case-made showing all the proceedings of the district court, the plaintiff in error attached to its petition in error a transcript of the record. The transcript shows no motion for judgment on the pleadings, no objection to the introduction of testimony under the pleadings, no ruling upon any such motion or objection, and no exceptions to any such rulings. Therefore, assignments of error numbered one, two and three cannot be considered. The propriety of such an instruction as is referred to in assignment of error No. 4 cannot be determined without viewing the evidence introduced at the trial, and the transcript contains no bill of exceptions. Assignments of error Nos. 6, 7, 8, 9 and 10 all require an examination of evidence which has not been preserved, in order to judge of their merit. The argument made in support of assignment No. 5 is based upon a consideration of the instructions to the jury, and their validity cannot be ascertained without an investigation of proceedings not shown by the transcript.

The answer of the plaintiff in error filed in the district court was denied under oath, and a discussion of its right to a judgment upon the pleadings would involve an entirely profitless expenditure of time. True, the court instructed the jury that the case of Pitcher and others against the Missouri, Kansas & North-western Railroad Company did not constitute a settlement of the issues in the case now under consideration, but, paraphrasing the brief of plaintiff in error, this court can say that it is evident that somewhere in the case facts supporting the instruction were either admitted by ...