Board of Commissioners v. Beals

Court of Appeals of Kansas

Board of Commissioners v. Beals

43 P. 95, 2 Kan. App. 313, 1895 Kan. App. LEXIS 248

CourtCourt of Appeals of Kansas

DecidedJanuary 9, 1896

DocketNo. 53

StatusPublished

This text of 43 P. 95 (Board of Commissioners v. Beals) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Board of Commissioners v. Beals, 43 P. 95, 2 Kan. App. 313, 1895 Kan. App. LEXIS 248 (kanctapp 1896).

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Opinion

The opinion of the court was delivered by

Garver, J. :

This was an action commenced before a justice of the peace by the board of county commis[314]*314sioners of Rawlins county against Jesse W. Beals, in which judgment was rendered by the justice for the defendant, and an appeal therefrom to the district court was attempted to be taken by the plaintiff. On motion of the defendant the appeal was dismissed. This ruling of the court is the only question presented for our consideration.

No appeal bond was given, and, in lieu thereof, the plaintiff attempted a compliance with the statute which provides : -

“When any municipality desires to appeal, no bond shall be required, and it shall be sufficient to perfect any such appeal if the appellant shall, within 10 days after the rendition of the judgment, cause to be filed with the justice of the peace a statement in writing that appellant does appeal from such judgment to the district court of the county, ( and file an affidavit setting forth the appeal is not taken for vexation or delay, but because the affiant believes that the appellant is aggrieved by the judgment.’ ” (Gen. Stat. 1889, ¶4973.)

A written statement that the plaintiff appealed to the district court was filed eight days and the affidavit required by the statute was filed 15 days after the rendition of the judgment. The requirements of the statute as to the conditions upon which an appeal may be taken from a justice’s court to the district court must be complied with within the time given by the statute, or the right to an appeal is lost. When other conditions are imposed in lieu of the giving of a bond, a compliance with such' statutory requirements is essential. • Both the written statement and the affidavit must be filed; neither one of itself is sufficient to secure an appeal. The statute expressly provides that these necessary steps for an appeal must be taken within 10 days after the rendi[315]*315tion of the judgment. As that was not done in this case the appeal was properly dismissed. (Struber v. Rohlfs, 36 Kan. 202; McCarthy v. Holden, 54 id. 313.) The judgment of the district court will be affirmed.

All the Judges concurring.

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The opinion of the court was delivered by

Garver, J. :

This was an action commenced before a justice of the peace by the board of county commis[314]*314sioners of Rawlins county against Jesse W. Beals, in which judgment was rendered by the justice for the defendant, and an appeal therefrom to the district court was attempted to be taken by the plaintiff. On motion of the defendant the appeal was dismissed. This ruling of the court is the only question presented for our consideration.

No appeal bond was given, and, in lieu thereof, the plaintiff attempted a compliance with the statute which provides : -

“When any municipality desires to appeal, no bond shall be required, and it shall be sufficient to perfect any such appeal if the appellant shall, within 10 days after the rendition of the judgment, cause to be filed with the justice of the peace a statement in writing that appellant does appeal from such judgment to the district court of the county, ( and file an affidavit setting forth the appeal is not taken for vexation or delay, but because the affiant believes that the appellant is aggrieved by the judgment.’ ” (Gen. Stat. 1889, ¶4973.)

A written statement that the plaintiff appealed to the district court was filed eight days and the affidavit required by the statute was filed 15 days after the rendition of the judgment. The requirements of the statute as to the conditions upon which an appeal may be taken from a justice’s court to the district court must be complied with within the time given by the statute, or the right to an appeal is lost. When other conditions are imposed in lieu of the giving of a bond, a compliance with such' statutory requirements is essential. • Both the written statement and the affidavit must be filed; neither one of itself is sufficient to secure an appeal. The statute expressly provides that these necessary steps for an appeal must be taken within 10 days after the rendi[315]*315tion of the judgment. As that was not done in this case the appeal was properly dismissed. (Struber v. Rohlfs, 36 Kan. 202; McCarthy v. Holden, 54 id. 313.) The judgment of the district court will be affirmed.

All the Judges concurring.

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Bluebook (online)

43 P. 95, 2 Kan. App. 313, 1895 Kan. App. LEXIS 248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-commissioners-v-beals-kanctapp-1896.

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