Brown v. Clark

31 Kan. 521

Opinion

The opinion of the court was delivered by

Brewer, J.:

A motion is made to dismiss this case, on the ground that the petition in error was not filed in this court within one year after the rendition of the judgment complained of. The petition in error was filed December 10, 1883. The trial, verdict and judgment were on August 24, 1881. There was however no journal entry made of these proceedings at that time, but on December 19, 1882, upon motion and notice, the court made an order directing a nunc pro tunc journal entry of the proceedings, including the judgment as of the date August 24,1881. The motion which was filed for this journal entry stated that on the judge’s docket these facts of trial, verdict and judgment were all minuted. The evidence which was offered in support of this motion is not preserved; no exceptions were taken to the order of the court, so that its correctness cannot be questioned. The case, therefore, stands before us upon the simple facts of dates as above stated. The statute provides, Laws 1881, p. 229, § 2, that “ no proceeding for reversing, vacating or modifying judgments or final orders shall be commenced unless within one year after the rendition of the judgment, or making of the final orders complained of.” Under this statute the plaintiff in error is too late. The petition in error must be filed within one year after the rendition of the judgment, not within one year after the time a journal entry thereof is in fact made. Now the judgment was rendered in August, 1881. That, according to the record, must be accepted as unquestioned. But the petition in error was not filed until December, 1883.

The motion to dismiss must be sustained.

All the Justices concurring.