Union Park Land Co. v. Muret

Supreme Court of Kansas

Union Park Land Co. v. Muret

45 P. 589, 57 Kan. 192, 1896 Kan. LEXIS 129

Supreme Court of Kansas·Decided July 11, 1896·No. No. 8714·Published·Cited by 8 cases

Opinion

Allen, J.

There was no trial of any issue of fact in the District Court, but judgment was rendered on the pleadings. Any error appearing in this judgment could have been reviewed without a motion for a new trial. Land and Cattle Co. v. Daly., 46 Kan. 504; Ritchie v. K. N. & D. Rly. Co., 55 id. 36; Water-Supply Co. v. Dodge City, 55 id. 60. At the time judgment was rendered no extension of time was allowed for making and serving a case. As no extension was allowed within three days after the judgment complained of was rendered, and as a motion for a new trial was entirely unnecessary, the order granting the extension of time was made without jurisdiction, and there is nothing that can be considered by this Court. Ætna Life Ins. Co. v. Koons, 26 Kan. 215; St. L. & S. F. Rly. Co. v. Corser, 31 id. 705; Limerick v. Haun, 44 id. 696. In this state of the record the only errors we can consider are such as are raised by the motion for a new trial. The judgment in the case was for a strict foreclosure, which the law does not authorize, but the defendant made no motion asking the Court to correct the form of the judgment. The only motion filed was for a new trial. For this there was no occasion. The plaintiff, under the admissions of the answer, was clearly entitled to a judgment of the kind authorized by law, directing a foreclosure of his mortgage and a sale of the mortgaged premises. If the plaintiff in error desired to have the judgment reviewed it was incumbent on it, if it desired to come by case-made, [195]*195to have either served its case within three days, or obtained an extension of time for so doing within that period. This it failed to do. It could not extend the time by filing a useless motion. Possibly, a motion to correct the judgment, made at any time during the term at which it was rendered, would have raised the question now sought to be presented, and a case served within three days after the overruling of the motion would have been in time. The motion for the new trial, however, affords the plaintiff in error no basis for relief in this Court.

The judgment is therefore affirmed.

All the Justices concurring.

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Allen, J.

There was no trial of any issue of fact in the District Court, but judgment was rendered on the pleadings. Any error appearing in this judgment could have been reviewed without a motion for a new trial. Land and Cattle Co. v. Daly., 46 Kan. 504; Ritchie v. K. N. & D. Rly. Co., 55 id. 36; Water-Supply Co. v. Dodge City, 55 id. 60. At the time judgment was rendered no extension of time was allowed for making and serving a case. As no extension was allowed within three days after the judgment complained of was rendered, and as a motion for a new trial was entirely unnecessary, the order granting the extension of time was made without jurisdiction, and there is nothing that can be considered by this Court. Ætna Life Ins. Co. v. Koons, 26 Kan. 215; St. L. & S. F. Rly. Co. v. Corser, 31 id. 705; Limerick v. Haun, 44 id. 696. In this state of the record the only errors we can consider are such as are raised by the motion for a new trial. The judgment in the case was for a strict foreclosure, which the law does not authorize, but the defendant made no motion asking the Court to correct the form of the judgment. The only motion filed was for a new trial. For this there was no occasion. The plaintiff, under the admissions of the answer, was clearly entitled to a judgment of the kind authorized by law, directing a foreclosure of his mortgage and a sale of the mortgaged premises. If the plaintiff in error desired to have the judgment reviewed it was incumbent on it, if it desired to come by case-made, [195]*195to have either served its case within three days, or obtained an extension of time for so doing within that period. This it failed to do. It could not extend the time by filing a useless motion. Possibly, a motion to correct the judgment, made at any time during the term at which it was rendered, would have raised the question now sought to be presented, and a case served within three days after the overruling of the motion would have been in time. The motion for the new trial, however, affords the plaintiff in error no basis for relief in this Court.

The judgment is therefore affirmed.

All the Justices concurring.

Union Park Land Co. v. Muret, 45 P. 589, 57 Kan. 192, 1896 Kan. LEXIS 129 (kan 1896).

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Opinion

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