Teagarden v. Board of Commissioners

49 Kan. 146

• Court: Supreme Court of Kansas
• Decided: January 15, 1892
• Status: Published

Opinion

Opinion by

Simpson, C.:

This was an appeal from the award of damages for the location of a road. The amount claimed by the plaintiffs was $1,250. The amount' awarded by the county commissioners was $25. Upon appeal, the verdict of the jury was for the plaintiffs in the sum of $20. No pleadings were filed or required in the district court. Upon the return of the verdict, the plaintiffs moved for a new trial. This motion was overruled, and judgment entered by the court for the plaintiffs, for $20 damages and $107.50 costs. This judgment was entered at the fall term, November 21, 1888. The June term of the district court for Linn county for 1889 began on the first Tuesday of June. (Laws of 1889, ch. 118, § 2.) The first Tuesday of June, 1889, was the 4th day of the month. A motion to retax costs was filed on the 12th day of June, 1889. This was one week and a day after the June term began. This was the seventh day of the June term. On the ninth day of the June term, being the 14th day of the month of June, 1889, the court heard the motion to retax costs, and sustained it, and adjudged all the costs against the appellants, the plaintiffs in error here. This motion was as follows:

“Now comes the defendant, and moves the court to retax the costs in this case and tax them against the plaintiffs, instead of the defendant, and render judgment therefor against said plaintiffs, for the reason that this action is an appeal from the decision and award of the county commissioners of said county granting to the plaintiffs $25 damages for the location and establishment of a public highway over and across the lands of said plaintiffs; that a warrant of said county, duly and legally made and executed by said county, was tendered to said plaintiffs, in the sum of $25, in payment of said damages, before this case was appealed to the district court, and said warrant remained in the office of the county clerk of said county, subject to the order of said plaintiffs; that the said plaintiffs refused to accept the same and prosecuted their appeal to a final judgment in this court; that said warrant was at all times subject to the order and disposition of said plaintiffs, from the time of its execution and tender to the plaintiffs up to the verdict and judgment upon appeal to this court; that the plaintiffs, upon the trial of this case upon appeal to this court, recovered a judgment for $20 and no more.”

The journal entry sustaining the motion for a retaxation of costs recites that the plaintiffs’ attorney duly excepted and excepts to the ruling. Counsel for the plaintiffs in error alleges in his brief that he had no notice of the motion, and that the exceptions were put in the record by the generosity of the court or opposing counsel.

In the present condition of the record, we can only recommend an affirmance of the judgment. If the record does not state the truth about the presence of the plaintiffs in error at the time the motion to retax the costs was sustained, it ought to have been corrected before this proceeding in error was instituted in this court. The object of a notice being to acquaint the adverse party of the time at which the motion will be heard, and of the causes of the motion, and the record reciting the objection of the plaintiffs taken at the time of the ruling, it sufficiently appears that all the purposes of a notice were subserved.

We recommend an affirmance of the judgment.

By the Court: It is so ordered.

All the Justices concurring.