Gross v. Funk

20 Kan. 655

• Court: Supreme Court of Kansas
• Decided: July 15, 1878
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

Where due notice of the time and place of settling and signing a case-made for the supreme court has been given to the adverse party, such party cannot ignore such notice, or treat it as a nullity, although the time fixed in such notice for settling and signing such case may be earlier than the ease could properly be settled and signed. (Nelson v. Becker, 14 Kas. 509, 510, and cases there cited.) And where the judge of the court, in the absence of the adverse-party, and without any objection from him or from any other person, settles and signs the case upon such a notice, and nothing further is done concerning the same, the supreme court will, in the absence of other irregularities, treat the case as valid.

A finding made and entered in the case-made by the judge while settling and signing such case, showing that such notice has been given, is sufficient evidence, prima facie, -to prove the fact that such notice was given. (Haynes v. Cowen, 15 Kas. 637, and opinion of Brewer, J., p. 645, 646.)

The defense of usury cannot be set up against a negotiable promissory note while in the hands of an innocent indorsee who purchased the same before maturity. (Day v. Walker, 16 Kas. 326, 332; Holden v. Clark, 16 Kas. 346; Rahm v. Bridge Co., 16 Kas. 530; Mechanic’s Bank v. Crow, 66 N.Y. ; Cicot v. Gagrin, 2 Mich. 381; 1 Hill. on Mort. 574; 1 Pars. Notes, 279, 280; Gen. Stat., ch. 14, §3.

The judgment of the court below will be reversed, and cause remanded for further proceedings.

All the Justices concurring.