Packard v. Packard

56 Kan. 132

• Court: Supreme Court of Kansas
• Decided: July 15, 1895
• Docket: No. 7734
• Status: Published

Opinion

The opinion of the court was delivered by

Mastín, G. J.

: At February term, 1884, the plaintiff in error obtained a decree of divorce, for the custody of children, and for alimony, against the defendant in error. This court affirmed the judgment as to the divorce and the custody of children, but reversed it as to alimony, and remanded the case for a new trial on the question of alimony alone. (34 Kan. 53.) At an adjournment of February term, 1886, and on April 2 of that year, the case was again tried, and certain lands were set apart to the plaintiff as and for alimony. Nothing further appears to have been done in court until January 29, 1891, when the plaintiff appeared by counsel, and filed a motion for the correction of the journal entry of the judgment as to alimony, on the ground that said entry did not conform to the actual judgment rendered, but that certain of the lands decreed to her as alimony were omitted from the journal entry, and that certain other lands not decreed to her were included therein, the motion particularly describing all the tracts and lots of ground. On May 27, 1891, at May term, said motion was presented for hearing, and the plaintiff in support thereof offered to introduce evidence, to which the defendant objected, and the objec-. tion was sustained and the motion dismissed at the plaintiff’s costs. The particular grounds of objection and for the dismissal do not appear in the record, but on the argument of the case here upon a proceeding in error it seems to be conceded that the court held the motion came too late. (See §§ 568, 569 and 575 of the Code of Civil Procedure.)- The plaintiff in error contends that these sections are only applicable when a reversal or modification of a judgment or order is sought, citing in support thereof Tobie v. Comm’rs of Brown Co., 20 Kan. 14, 17, while in this proceeding it was only asked that the journal entry of the judgment be made to conform to that which was actually rendered, and that the power to grant such relief is inherent and continuing in the court, and this position is ably presented by counsel. But the defendant in error filed a motion to dismiss on several grounds, one of them being that the judge did not certify that the case belonged to one of the excepted' classes, as provided by section 542a of the code of civil procedure. The record does not anywhere disclose the value of the property to be $100 or more, nor is-such fact otherwise shown, and there is no certificate that the case comes within any of the excepted classes. (Coal Co. v. Barber, 47 Kan. 29, 33 ; Loomis v. Bass, 48 id. 26 ; Skoin, v. Limerick, 50 id. 465.)

The case must therefore be dismissed.

All the Justices concurring.