Brown v. Rhodes

1 Kan. 359

• Court: Supreme Court of Kansas
• Decided: July 15, 1863
• Status: Published

Opinion

By the Court,

Cobb, C. J.

This cause comes here by petition in error to review a judgment rendered by the late territorial district-court in Allen county, at its October term, A. D. 1859. ■■

A copy bill of exceptions is brought here, with the transcript of the record of the district court, which purports to have been filed by the clerk of that court at a time subsequent to the close of said term; and the transcript contains no journal entry showing the allowance or filing of a bill of exceptions. ,

Is such a bill of exceptions a part of the record \

Section three hundred and one of the code of civil procedure provides that “time may be given to reduce the exceptions to writing,.but not beyond the term.”

Section three hundred and four provides that the party “shall present it to the court for its allowance, and if true, it shall be the duty of a majority of the judges, composing the couxjt, to allow and sign it.”

No language could make it more clear that the bill must be allowed and signed within the term at which the exceptions were taken; and the language immediately following that last cited, “whereupon it shall be filed with tide pleadings, as apart of the record,” can mean nothing else than that it shall then be filed and become a part of the record.

The statute does not declare the bill a part of the record before it is filed, and the filing is therefore necessary to make it1 such.

The records of a term óf court are made during the term, and under the direction of the court; but in filing the bill outtof term the party undertook to make a record by exparte motion before the clerk in vacation.

Such practice is unsafe to suitors, and sustained neither by law nor precedent.

The bill of exceptions is, therefore, no part of the record, and the cause must be considered without reference to it.

There are but three allegations of error in the petition. The first two allege error in the charge of the court to the jury, which charge does not appear upon the record. The third is, that the judgment was for Rhodes, and should have been for Brown. It does not state what erroneous ruling caused the rendition of the judgment for Rhodes, nor whether it was the fault of the court or of the jury. It is general and indefinite, and does not set forth the error complained of.

There is, therefore, no alleged error set forth in the petition that appears upon the record.

The code (§ 527) requires the plaintiff in error to file his petition, “setting forth the errors complained of.” And any error not so set forth is, therefore, not complained of, but waived by the party and the court will not consider it. [See hash’s PL $ Pr., 692, and oases there cited.)

None of the errors complained of in this case, appearing by the record, the judgment of the district court must be affirmed, with costs to the plaintiff.

All the justices concurring.