State v. Ashmore

19 Kan. 544

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

Opinion

The opinion of the court was delivered by

Horton, C. J.:

The attorney-general, representing the state, objects to any consideration of this case upon the alleged errors, on the ground that the case is not properly before this court upon appeal, or otherwise; first, because no notice of appeal appears in the transcript; second, because the appeal was not taken within two years after the judgment was rendered.

The first objection is fatal to the jurisdiction of this court; and however much we might desire to pass upon the questions presented by the counsel for the convict, we cannot, within the provisions of law, assume any authority over the judgment rendered in the district court. Sec. 285, criminal code, (Gen. Stat. 866,) is identical with section 268, Comp. Laws. 275; and said last section was fully considered and construed in Carr v. The State, 1 Kas. 331. In that case it was held, “the service of the notice of appeal on the clerk, and the appellee, or attorney, constitutes the appeal; and upon that alone the jurisdiction of this court to review the judgment and decision of the court below rests. It is therefore an important part of the record, and it should appear in the transcript filed, that this court may see and its records show it has jurisdiction.” See also, The State v. King, 1 Kas. 466; The State v. Brandon, 6 Kas. 243; The State v. Baird, 9 Kas. 60; The State v. Boyle, 10 Kas. 113; Neitzel v. City of Concordia, 14 Kas. 446. These authorities are decisive, upon the objection made by the learned attorney-general; and the proceedings in this case in this court must be dismissed.

All the Justices concurring.