Watts v. Naylor

Court of Appeals of Kansas

Watts v. Naylor

48 P. 921, 5 Kan. App. 146, 1897 Kan. App. LEXIS 514

CourtCourt of Appeals of Kansas

DecidedApril 30, 1897

DocketNo. 212

StatusPublished

This text of 48 P. 921 (Watts v. Naylor) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Watts v. Naylor, 48 P. 921, 5 Kan. App. 146, 1897 Kan. App. LEXIS 514 (kanctapp 1897).

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Opinion

McElroy, J.

The case involved an issue of fact; and it should have been placed on the trial docket before the term commenced. Eighty-three days after the term commenced it was put on the trial docket and dismissed, without notice to the appellant or his attorney. The plaintiff may move for a judgment on or after the day on. which the case is set for trial. Sec. 313, Code of Civil Procedure. The trial of issues of fact is to be in the order in which they are placed on the trial docket. Sec. 314, Code. The clerk is required to make out a copy of the trial docket for the use of the bar before the first day of the term. Sec. 318, Code. The irregularity in putting the case on the trial docket would not, of itself, affect the substantial rights of the appellant, if he had had notice of such action ; but, under the circumstances, the appellant should have had notice that the case was placed on the trial docket, or he should have been notified that action would be taken in the case and of the time when it would be called for trial.

Upon the showing made by the appellant, the court should have set aside the default and reinstated the case for trial. The appellant has not had his day in court.

The judgment will be reversed and the case remanded, with the direction that the trial court set aside the default and that the case be entered upon the docket for further proceedings.

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McElroy, J.

The case involved an issue of fact; and it should have been placed on the trial docket before the term commenced. Eighty-three days after the term commenced it was put on the trial docket and dismissed, without notice to the appellant or his attorney. The plaintiff may move for a judgment on or after the day on. which the case is set for trial. Sec. 313, Code of Civil Procedure. The trial of issues of fact is to be in the order in which they are placed on the trial docket. Sec. 314, Code. The clerk is required to make out a copy of the trial docket for the use of the bar before the first day of the term. Sec. 318, Code. The irregularity in putting the case on the trial docket would not, of itself, affect the substantial rights of the appellant, if he had had notice of such action ; but, under the circumstances, the appellant should have had notice that the case was placed on the trial docket, or he should have been notified that action would be taken in the case and of the time when it would be called for trial.

Upon the showing made by the appellant, the court should have set aside the default and reinstated the case for trial. The appellant has not had his day in court.

The judgment will be reversed and the case remanded, with the direction that the trial court set aside the default and that the case be entered upon the docket for further proceedings.

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Bluebook (online)

48 P. 921, 5 Kan. App. 146, 1897 Kan. App. LEXIS 514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watts-v-naylor-kanctapp-1897.