Mudge v. Kansas National Bank

Supreme Court of Kansas

Mudge v. Kansas National Bank

43 P. 255, 56 Kan. 353, 1896 Kan. LEXIS 23

CourtSupreme Court of Kansas

DecidedJanuary 11, 1896

DocketNo. 8890

StatusPublished

Cited by4 cases

This text of 43 P. 255 (Mudge v. Kansas National Bank) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mudge v. Kansas National Bank, 43 P. 255, 56 Kan. 353, 1896 Kan. LEXIS 23 (kan 1896).

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Opinion

The opinion of the court was delivered by

Johnston, J. :

This proceeding in error is founded on a case-made, the validity of which is challenged upon the ground that it does not appear to have been settled by the trial court. Appended to the case is a certificate which recites: “And now, on this 28th day of June, 1892, come the parties by their attorneys, and present this made case to me for final settlement ; and, having considered said made case, and the amendments suggested thereto, I do hereby certify that the foregoing is a full, complete, and correct record of all the pleadings, process, evidence and proceedings in the case. Witness my hand,” etc.

The certificate, although signed by the judge, lacks the essential statement that the case-made was settled, and is, therefore, fatally defective. “The certificate of the judge to a case-made should show affirmatively that he has settled it.” (Allen v. Krueger, 25 Kan. 74; National Bank v. Becannon, 51 id. 716.) It is not absolutely essential that the words of the statute should be employed, but the expressions used should clearly indicate that the judge has determined that what he has considered and signed is a true case-made; but probably no briefer or better terms can be employed than those found in the statute. As the word “allowed” as well as “settle” is found in the statute, it may be safely used in the cer[355]*355tificate. (A. T. & S. F. Rld. Co. v. Cone, 37 Kan. 567.) The statements in the certificate as to what is contained in the case-made are without force and must be ignored. Stripped of these statements, nothing remains except a certificate that the case was presented to the judge for settlement, and that he considered the same.

Within the case of National Bank v. Becannon, supra, the certificate is insufficient, and the proceeding must be dismissed.

All the Justices concurring.

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The opinion of the court was delivered by

Johnston, J. :

This proceeding in error is founded on a case-made, the validity of which is challenged upon the ground that it does not appear to have been settled by the trial court. Appended to the case is a certificate which recites: “And now, on this 28th day of June, 1892, come the parties by their attorneys, and present this made case to me for final settlement ; and, having considered said made case, and the amendments suggested thereto, I do hereby certify that the foregoing is a full, complete, and correct record of all the pleadings, process, evidence and proceedings in the case. Witness my hand,” etc.

The certificate, although signed by the judge, lacks the essential statement that the case-made was settled, and is, therefore, fatally defective. “The certificate of the judge to a case-made should show affirmatively that he has settled it.” (Allen v. Krueger, 25 Kan. 74; National Bank v. Becannon, 51 id. 716.) It is not absolutely essential that the words of the statute should be employed, but the expressions used should clearly indicate that the judge has determined that what he has considered and signed is a true case-made; but probably no briefer or better terms can be employed than those found in the statute. As the word “allowed” as well as “settle” is found in the statute, it may be safely used in the cer[355]*355tificate. (A. T. & S. F. Rld. Co. v. Cone, 37 Kan. 567.) The statements in the certificate as to what is contained in the case-made are without force and must be ignored. Stripped of these statements, nothing remains except a certificate that the case was presented to the judge for settlement, and that he considered the same.

Within the case of National Bank v. Becannon, supra, the certificate is insufficient, and the proceeding must be dismissed.

All the Justices concurring.

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Bluebook (online)

43 P. 255, 56 Kan. 353, 1896 Kan. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mudge-v-kansas-national-bank-kan-1896.

Opinion

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