Gimbel & Floresheim v. Turner

36 Kan. 679

• Court: Supreme Court of Kansas
• Decided: January 15, 1887
• Status: Published

Opinion

The opinion of the court was delivered by

Johnston, J.:

This proceeding is brought, to reverse a judgment rendered against the plaintiffs in error in an action of replevin by the district court of Cloud county, at the November term, 1884. The validity of the record is challenged upon the ground that the case as made by plaintiffs was not served within the time allowed by law or given by the court. A motion for a new trial was overruled on the 22d day of November, 1884, and the court, upon the application of the plaintiffs, extended the time within which they might make and serve a case, to the 21st day of December, 1884. From the record it appears that the case was not served until the 22d day of December, and it does not appear that there was any extension of time by the court or judge, within which it might be done. It is true that the judge of the court certifies that the case-made was “duly served,” but this general statement cannot overcome the specific recital showing that it was served too late. Not being served within the time allowed by the court, the judge was without authority to settle or sign the same, and the case attached to the petition in error is a nullity. (Railway Co. v. Wingfield, 16 Kas. 217; Weeks v. Medler, 18 id. 425; Ingersoll v. Yates, 21 id. 90; Ætna Life Ins. Co. v. Koons, 26 id. 215.)

No questions are presented by the petition in error except such as are raised upon the admission of testimony and the instructions of the court, and therefore there is nothing before us for review. However, we have looked into the record brought up, and even if the case had been properly served and settled, we discover nothing which would require a reversal.

The cause will be dismissed from this court.

All the Justices concurring.