Phelps & Bigelow Windmill Co. v. Deming

50 P. 944, 6 Kan. App. 502, 1897 Kan. App. LEXIS 363

• Court: Court of Appeals of Kansas
• Decided: November 10, 1897
• Docket: No. 163
• Status: Published

Opinion

Dennison, P. J.

This action comes to this court from the District Court of Linn County, Kansas. The plaintiff in error filed a petition in error to which is attached the case-made.

The jurisdiction of this court is challenged by the defendants in error. It is contended that the case-made was not served upon the defendants within the time fixed by the statute nor within the time allowed by the court, and that there is a fatal defect of parties defendant.

The motion for a new trial in this case was overruled on March 5, 1892, and the plaintiff in error was given forty days within which to make and serve a. case-made. This time would expire with the fourteenth day of April, 1892. The next proceeding contained in the record is the following stipulation :

“ lb is hereby agreed by and between John C. Cannon, attorney for the above-named plaintiff, and Ed. C.' Gates, attorney for the above-named defendants, that the time for serving, completing and settling the case-made in the above-entitled cause, shall be continued from the thirtieth day of April, 1892, to the sixteenth day of June, 1892.

John C. Cannon, attorney for plaintiff.

Ed. C. Gates, attorney for defendant.”.

“ It is so ordered, this April 25, 1892. — J. S. West, District Judge.”

The time to make and serve a case-made had elapsed, and no case had been served nor had the judge again extended the time therefor on April 14, nor until April 25, 1892. This was eleven days too late.

“When the time for making and serving a case-made has elapsed, the judge is without power to extend the time for that purpose, or to settle and sign a case which may thereafter be presented.

“The jurisdiction of the judge to settle and sign a case having been lost by lapse of time, it cannot be restored by the agreement of the parties nor by any action which the judge with their consent may take.” Ferree v. Walker, 54 Kan. 49.

Because of the failure to make and serve the case-made in time,.the case must be dismissed, and it is unnecessary to notice the other questions presented.

The case is ordered dismissed.