City of Burlingame v. Kansas Valley National Bank

17 Kan. 407

• Court: Supreme Court of Kansas
• Decided: January 15, 1877
• Status: Published

Opinion

The opinion of the court-was delivered by

Brewer, J.:

But a single question is presented by counsel for plaintiff in error, and that, it seems to us, is clearly covered by decisions already made in this court. March 21st 1872, was the time for filing a reply. It was filed the next day. Judgment was not entered until December 1874. When called for trial at that time the defendant moved to strike the reply from the files, because filed out of time. The court overruled the motion, and this is the error complained of. It also appears that the case was continued by consent, at the fall term of 1872. At the fall term of 1873, judgment was by agreement of the respective attorneys rendered in favor of the plaintiff, as appears from the minutes of the judge upon the trial docket, though no entry thereof appears on the journal of the court. Was the plaintiff in error prejudiced by the ruling of the court? Clearly not. The reply had stood unchallenged for nearly three years. The parties had once consented to judgment. If no reply had been filed, it would scarcely seem an abuse of the court’s discretion, if it had permitted one to be filed. A fortiori, there was no abuse in permitting one already filed to remain. See upon the power of the court in respect to filing of pleadings, Douglas v. Rinehart, 5 Kas. 392; Davis v. Wilson, 11 Kas. 74; Taylor v. Hosick, 13 Kas. 518; Clark v. Spencer, 14 Kas. 398; Hobson v. Ogden, 16 Kas. 388.

The judgment will be affirmed.

All the Justices concurring.