Safford v. Turner

37 P. 121, 53 Kan. 728

Opinion

The opinion of the court was delivered by

Allen, J.:

In both these cases motions to dismiss, on the ground that the cases were settled in the absence of the defendant in error and without notice, are interposed. The records show that on the 17th day of July, 1890, motions for a new trial were overruled, and 60 days given to make and serve cases. On the 12th day of September an order was made, extending the time for 10 days from the 14th day of September. The order then provides that the defendant shall have 10 days thereafter to suggest amendments, and the cases to be settled upon five days’ notice by either party. The cases were settled on the 31st day of October. There is nothing in the records showing either that amendments were suggested, that notice of the time of settlement was given or waived, or that the defendant was present when they were settled. On the other hand, an affidavit of the attorney for the defendant in error is filed, showing that no notice was given or waived, and that there was no appearance for the defendant at the time the cases were settled.

The motions to dismiss must be sustained. (Weeks v. Medler, 18 Kas. 425; Railway Co. v. Roach, 18 id. 592; Boot and Shoe Co. v. Martin, 45 id. 765.)

All the Justices concurring.