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(5 Kan, App. 660)

Court, Butler County, Kansas, by A. Swiggett, MUTUAL BENEFIT LIFE INS. CO. V. Deputy." It was contended by the defend. SACKETT et al.

ants in error that the language of the certiti(Court of Appeals of Kansas, Southern Depart

cate is not sufficient to show that the judge ment, C. D. May 13, 1897.)

settled the case-made, as he is required to do APPEAL-CASE-MADE--AMENDMENTS-SETTLEMENT. by the statutes, as interpreted by the supreme

1. All statements in the certificate of the trial court in Bank v. Bocannon, 51 Kan. 116, 33 judge to a case-made, not necessary for the pur

Pac. 595, and Allen v. Krueger, 25 Kan. 74, pose of merely showing that the case is properly settled, should be treated as surplusage.

and cases therein cited. In addition to the 2. That portion of paragraph 4650, Gen. St., doctrine laid down in these authorities, the which says, “and if no amendments are suggested court bad before it the decision in the case of by the opposing party, as above provided, said case shall be taken as true, and containing a full

Mudge v. Bank, 56 Kan. 353, 43 Pac. 253, record of the cause, and certified accordingly,” is when this question came before us. Upon construed to be directory only, and not manda- these authorities we unhesitatingly sustained tory. 3. When a case-made is presented to the trial

the motion, and the case was ordered disjudge for settlement, it is his duty to examine

missed. On February 26, 1896, the plaintiff its statements, whether amendments are sug- , in error filed a petition for a rehearing. One gested or not, and to see that they are true, be

of the grounds upon which it is claimed that fore he signs them, 4. The settlement of a case-made includes the

this court erred in its ruling is that no amendjudicial operation of the mind of the trial judge, ments were suggested to the case-made, and by which he determines that the statements that, therefore, the judge had nothing to settherein contained are true, and the making of a certificate which will show that he has made

tle. Our attention was specially called to the such a determination.

language of the latter part of paragraph 4650 (Syllabus by the Court.)'

of the General Statutes of 1889, which says On rehearing. For former opinion, see 43

that, "if no amendments are suggested, * Pac. 816.

said case shall be taken as true and containing

a full record of the cause and certified accordDENNISON, P. J. At the January, 1896, ingly.” This provision had not been carefully term of this court, this case was submitted to considered by us, and, so far as we could asus upon the briefs of both parties. The case

certain, had not been considered by the suwas then considered by us upon the motion of preme court; and we granted a rehearing of the defendants in error to dismiss the petition this case, so that this matter could be fully in error for the reason that no sufficient case- briefed and discussed, and that we might give made or transcript was attached thereto. On the question a careful consideration. The statthe 6th of February, 1896, an opinion written utes of Kansas relating to the authentication by Judge Cole was filed, sustaining the mo- of a case-made are contained in paragraphs tion to dismiss, for the reason that the case- 4619, 4630, Gen. St. 1889, which read as folmade was not properly authenticated by the lows: court below. The case-made contains a stipu- "4649. The case so made, or a copy thereof, lation of which the following is a copy: "It is shall, within three days after the judgment or hereby stipulated and agreed by and between order is entered, be served upon the opposite counsel for plaintiff and defendants that the party or his attorney, who may within three case-made heretofore served by plaintiff upon days thereafter suggest amendments thereto in said counsel for defendants may be signed and writing, and present the same to the party settled by the judge of said court in its present making the case, or his attorney. The case, form, counsel for defendants having no amend- and amendments shall be submitted to the ments to suggest. (Signed] Beardsley & Greg- judge, who shall settle and sign the same, and ory, Attys. for Pltff. Dale & Wall, Attys. for cause it to be attested by the clerk, and the Jesse W. Bales & Wife.” Following this is seal of the court to be attached thereto. It the certificate of the judge, which reads as fol- shall then be filed with the papers in the case. lows: “State of Kansas, Butler County, I, C. A certified copy thereof shall be filed with the A. Leland, judge of the district court of Butler petition in error. The exceptions stated in a county, Kansas, do hereby certify that I am case-made shall have the same effect as if they the judge before whom was tried the above- had been reduced to writing, allowed and signentitled action in said court; that the forego- ed by the judge at the time they were taken. ing case-made contains a true and correct copy "4650. The court or judge may, upon good of the pleadings filed therein, and a true, full, cause shown, extend the time for making a and correct statement of all the proceedings, case and the time within which the case may evidence, objections, exceptions, motions, and be served; and may also direct notice to be orders therein, and of the judgment rendered given of the time when the case may be pretherein; and the clerk of said court is hereby sented for settlement after the same has been ordered to attest this certificate with his offi- made and served, and amendments suggested, cial signature and the seal of the said court, which when so made and presented shall be and to file the said case-made as a part of the settled, certified and signed by the judge who records of said court in said action. (Signed] tried the cause; and the case so settled and C. A. Leland, Judge of the District Court, But- made shall thereupon be filed with the papers ler County, Kansas. Attest hand and seal of in the cause; and in all causes heretofore or said court. J. F. Todd, Clerk of the District hereafter tried, when the term of office of the trial judge shall have expired, or may here- it was served upon the opposite party, for the after expire before the time fixed for making reason that, if any other statements are to be or settling and signing a case, it shall be his added to the case, he may desire to suggest duty to certify, sign and settle the case in all amendments to the added statements. This respects as if his term had not expired; and principle is fully elucidated in Eddy v. Weavif no amendments are suggested by the oppos- er, 37 Kan. 510, 15 Pac. 192, and cases there ing party as above provided, said case shall be cited. All such statements in a certificate taken as true and containing a full record of should be treated as surplusage, for the reason the cause, and certified accordingly."

that, if the statements are in the case-made, The portions of these two paragraphs which they stand as true, and, if they are not in the define the duties of the judge may be said to case-made, they are improperly contained in be as follows: The case and amendments the certificate. Analyzing the certificate of shall be submitted to the judge, who shall the judge in the case at bar according to this settle and sign the same, and cause it to be at principle, we should treat as surplusage, and tested by the clerk, and the seal of the court eliminate therefrom, the following words: to be thereto attached. The court may extend "That the foregoing case-made contains a true the time for making and serving a case, and and correct copy of the pleadings filed theremay also direct notice to be given of the time in, and a true, full, and correct statement of when the case may be presented for settle- all the proceedings, evidence, objections, exment after the same has been made and serv. ceptions, motions, and orders therein, and of ed, and amendments suggested, which, when the judgment rendered therein." The cerso made and presented, shall be settled, cer- tificate would then read as follows: "I, C. A. tified, and signed by the judge who tried the Leland, judge of the district court of Butler cause; and, if no amendments are suggested county, do hereby certify that I am the judge by the opposing party, said case shall be taken before whom was tried the above-entitled acas true, and as containing a full record of the tion in said court; * and the clerk of cause, and certified accordingly. Prior to the said court is hereby ordered to attest this ceradoption of a case-made, the manner of bring- tificate with his official signature and the seal ing a case from the trial court to the reviewing of said court, and to file the said case-made as court was by a transcript of the record, duly a part of the records of said court in said accertified by the clerk of the trial court. The tion." This certificate is properly signed and evidence and rulings thereon were made part | attested. Is this certificate a proper authentiof the record by a bill of exceptions, which cation of a case-made, when no amendments must have been reduced to writing, and al- are suggested? “The signature of a judge to lowed and signed by the judge, at the time a case-made imports the truthfulness of the they were taken. In a case-made the judge preceding statements in such case, not only allows the exceptions, but he settles nothing more." Brown v. Johnson, 14 Kan. all controversies as to the record as well. His 377. If the certificate of the judge imports certificate and signature, when attested by the the truthfulness of a case-made, is the judge clerk, have the same force and effect as the compelled by the provisions of paragraph 4650, certificate of the clerk to a transcript, and the supra, to certify a case-made when it does not allowance of the bill of exceptions by the speak the truth? Suppose a case-made is prejudge. A case-made should set out so much sented to the judge for settlement, to which no of the record, evidence, and proceedings as is amendments have been suggested, and which necessary to present to the reviewing court a contains statements that the judge knows are full statement of the errors complained of. untrue. Suppose that some of these false The counsel for defendant in error can exam- statements relate to instructions claimed to ine the case served upon him, and determine have been given by the judge, or some of them whether the statements contained therein are relate to the misconduct of the judge. Must true. If the statements, as made, are true, he certify that these statements are true, he has no further concern in the matter. It is when they are clearly and palpably false? A immaterial to him whether the case is com- strict, literal interpretation of the latter part plete and sufficient or not. If the statements of paragraph 4650, supra, would seem to inare not true, he can suggest such amend- dicate that this must be done. It says, “If no ments to the case as will make them speak amendments are suggested by the opposing the truth. The controversies which arise in party, as above provided, said case shall be the statements in the case and the amend- taken as true and containing a full record of ments suggested are settled by the judge who the cause, and certified accordingly." In ortried the case. If no amendments are sug- der to give force to this provision, and hargested, the statements in the case may be tak- monize it with the other paragraphs relative en as true, and the case certified accordingly. 10 the preparation of cases-made, we must The question then arises as to what the cer- construe this portion of the paragraph to be tificate of the judge must show. It is evident directory only, and not mandatory. If the that it should not add anything not necessary word "may" had been used instead of the for the purpose of merely showing that the word "sball," it would perhaps more nearly case is properly settled to the statements voice the intention of the legislature. If no which were contained in the case at the time amendments are suggested, the case “may”

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be taken as true. In any event the judge must test this certificate. This is clearly not suffimake his certificate according to the truth as cient. The motion to dismiss will be sustainhe decides it to be. We are satistied that this ed. All the judges concurring. is the correct interpretation to be given to the language used. This harmonizes the statutes and the decisions of the supreme court upon

(5 Kan. App. 790) this subject. Paragraph 4618, Gen. St., pro

PEIRSON v. BENEDICT et al. vides that a party may make a case contain

(Court of Appeals of Kansas, Southern Departing a statement of so much of the proceed

ment, W. D. May 20, 1897.) ings, etc., as may be necessary to present the

VACATING JUDGMENT. errors complained of. Will it be contended

There is no authority in the law for a trial that the judge must certify that a case-made court at a subsequent term to set aside a judgcontains a full record of the cause, when it

ment duly rendered, on account of mere error of only purports to and does contain but a por

law committed by the court; and, such order of

vacation being void, the original judgment will tion thereof? If the word "shall” is manda be treated by the appellate court as an existing tory he must, if directory he may, certify ac- and valid judgment, no exceptions to its rendicording to the truth. Suppose a case-made is

tion, and no proceedings in error to reverse the presented to the trial judge, and, although no

same, having been taken. amendments have been suggested, he decides

(Syllabus by the Court.) that it does not speak the truth; must he cer

Error from district court, Pratt county; W. tify that it does? Our supreme court has held,

0. Bashore, Judge. and we think correctly, that the judge need

Action by Charles G. Peirson against Wilnot so stultify himself, and that his decision

liam T. Benedict and others. Judgment for that the case-made does not speak the truth

defendants, and plaintiff brings error. Reis final: "A judge of the district court, in set

versed. tling a case-made for the supreme court, has Beardsley & Gregory, for plaintiff in error. the power, on his own motion, or at the sug- J. M. Dumenil and Thompson & Apt, for gestion of either party, and before signing defendants in error. such case-made, to make such alterations in the case-made, such erasures and additions, as MILTON, J. On April 10, 1891, plaintiff may be necessary to make the case speak the in error filed his petition in the district court truth.” Sloan v. Beebe, 24 Kan. 313. “The of Pratt county to foreclose a mortgage which trial judge, in settling a case-made for the su- secured seven notes for $48 each, falling due preme court, has the power, before signing, on successively on the 1st day of January in his own motion, and without suggestion of each year from 1888 to and including 1894. amendments in writing from the adverse par- The mortgage, among other things, provided ty, to make such alterations, erasures, and ad- that if the mortgagors "shall fail to pay eiditions in it as may be necessary to make it ther or any of the said sums of money when speak the truth.

The decision of the the same shall become due, or shall fail to trial judge that a case-made, as prepared for keep each and every agreement in the mort. his signature by one of the parties to the ac- gage securing said loan, or shall fail to keep tion, is uptrue, is conclusive and final.” As- said mortgage securing said loan a first lien sociation v. Beebe, Id. 363. When a case-made upon said property, then said party of the is presented to the trial judge for settlement, second part, or the legal holder of the notes it is his duty to examine its statements, wheth- herein described, may pay such sum or sums er amendments are suggested or not, and to as are necessary to perform said agreement see that they are true. If he is not satisfied [for paying taxes), and keep said mortgage with the statements in the case-made, is his in first lien, and may add such sum or sums duty to either change them, or to require them to the amount secured by said mortgage, and to be changed, until they speak the truth. these presents shall be security for the same, The settlement of a case-made includes the and the same shall draw twelve per cent. injudicial operation of the mind of the trial terest per annum, and said second party may judge, by which he determines that the state- declare the whole sum or sums secured by ments therein contained are true, and the these presents immediately due and payable, making of a certificate which will show that and may proceed to foreclose the same, and he has made such a determination. When this all sums secured by these presents shall be certificate is signed by the trial judge, and included in and operate as a part of the judghis signature attested by the clerk under the ment upon foreclosure of this mortgage." seal of the court, the case-made is properly The notes and mortgage were given by Wilauthenticated, and ready to be placed among liam T. Benedict and Mary Benedict, who the files of the district court. Looking at the had wholly failed to pay the notes, or any certificate of the case at bar, eliminating the part thereof; and the petition contained as surplusage therefrom, we find no indication exhibits copies of the notes and mortgage. that the judge had determined that the state. Said defendants filed an unverified answer ments contained in the case-made are true. containing merely a general denial. PlainHe certifies that he is the judge before whom tiff then filed a motion for judgment upon the the case was tried, and orders the clerk to at- pleadings, and afterwards, on the 21st day of November, 1891, said motion was sustain- v. Snaveley, 47 Kan. 637, 28 Pac. 615; Sweared, and judgment entered for plaintiff for ingen v. Lahner (Iowa) 61 N. W. 433. In $533, and foreclosure of the mortgage. The the latter case it is held that the defendants journal entry of said judgment was duly filed should have pleaded waiver or estoppel, if on November 23, 1891. No further proceed- they desired to show that plaintiff had waivings whatever were had in said cause until ed his right of election. As the petition set June 28, 1892, when the defendants, Bene- forth copies of the notes and mortgage sued dict and Benedict, filed their motion to set on, and the answer was a mere general deaside and vacate said judgment. Said mo- nial, judgment would follow as a matter of tion contained four grounds, the first of which course when the ca was reached for trial, is the only one of importance. It is as fol- and therefore it was proper for the court to lows: "First. That the pretended petition render judgment on the pleadings under the upon which the pretended judgment was ren- motion therefor. The defendants did not exdered does not state facts sufficient to consti- cept to such action by the court, although tute a cause of action against these defend- their attorneys were present, and no appeal ants in favor of the plaintiff.” The other was taken. We hold that it was improper grounds practically restate the first in dif- for the trial court to vacate the judgment upferent language. Two regular terms of said on the ground stated in the order of vacacourt had been held in the meantime after tion, and that said order of vacation was the rendition of the said judgment and before unauthorized by statute or precedent. The the filing of this motion. On November 25, ground stated is not a statutory ground, and 1892, the court sustained said motion, and the statute gives the court power to vacate caused a journal entry to be made by which its own judgments after the term at which the said judgment was vacated, set aside, they are entered upon such grounds only as and held for naught. In this journal entry it are specifically stated therein. In the abis specifically stated that the motion to va- sence of this statute, the court could not vacate the judgment was sustained for the rea- cate its own judgments after the term at son set out in the first clause of said motion.

which they are entered, except where the Plaintiff duly excepted to this order of the same were void or voidable on account of court, and by proper proceedings brought the something extraneous thereto. The power to case here for review.

vacate judgments is not intended as a means It appears that no evidence was offered in to be used for the court to review or revise support of the motion to vacate. The only

its own judgments, or to correct any errors reason for vacating this judgment appears to of law into which it may have fallen. That have been that the trial court held that the

a judgment is erroneous as a matter of law option to declare all the notes due by reason is ground for an appeal, writ of error, or of default in the payment of one of them certiorari, according to the case, but is not should have been exercised, if at all, within ground for setting aside the judgment on moa reasonable time after default, and that it tion. The statutes enacted in many of the was not so exercised. It will be observed

states, including our own, granting power to that the defaults took place as regularly as vacate judgments, do not authorize the court the notes matured. The allegation of the pe- at a subsequent term to set aside a judgtition as to the exercise of the option is as ment, duly rendered, on account of mere erfollows: “ Which option plaintiff has exer- rors of law committed by the court. A decised, and has declared the whole of said cree of a court of equity cannot be set aside, notes due and payable." No specific date at on motion, for defective allegations in the bill, which the option was exercised is stated in or for defective pleadings. The proper remthe petition, and the court held, without any edy is by bill of review. See Black, Judgm. evidence being introduced, that it was not $ 329, from which part of the foregoing lanexercised until the time of the filing of the guage is taken, and the cases there cited. As petition. If the defendants had desired to the order of vacation was without authority have the petition made more definite and cer- in the law, it follows that the decree of foretain in regard to the date of the election on closure originally entered still stands. The the part of plaintiff to declare all of said case will therefore be reversed, with instrucnotes due, they should have filed a motion tions to the district court to enter an order for that purpose. No such motion was filed, setting aside said order of vacation, anu pernor any exceptions taken, by the defendants mitting further proceedings in accordance when the decree of foreclosure was entered. with the original judgment and decree of Conaway v. Gore, 24 Kan. 390; Railway Co. foreclosure. All the judges concurring.

(5 Kan. App. 802)

STATE Y BOYD. (Court of Appeals of Kansas, Southern Depart


INSTRUCTIONS. 1. Where a prosecuting attorney, in his closing argument to the jury, said, "If the defendant did not make these sales, why did he not go upon the stand, and deny it?" held that, for such irregularity, the defendant, on his motion, should be granted a new trial.

2. Such irregularity on the part of the prosecuting officer cannot be remedied or cured by instructions from the court.

(Syllabus by the Court.)

Error from district court, Pawnee county; Samuel W. Vandivert, Judge.

A. H. Boyd was convicted of selling intoxicating liquors, and brings error. Reversed.

George Finney, Co. Atty., for plaintiff in error. F. Dumont Smith, for the State.

procured or brought about by the inauguration and accomplishment of other violations of law. It is also true that in this case the court below instructed the jury that the statement made by the county attorney should not be allowed to work any prejudice to the rights or interests of the defendant. But, under the authorities, the evil done by such an infringement of the law-an infringement of law by the prosecuting officer of the state --cannot be remedied or cured by any mere instruction from the court. The only complete remedy, if the defendant is convicted. is to grant a new trial on his motion. Of course, if he does not want the new trial, or does not make a motion therefor, he should be sentenced.” Upon this authority, the judgment of the court must be reversed, and the cause remanded for a new trial. All the judges concurring.

SCHOONOVER, J. On the 19th day of

(5 Kan. App. 790) May, 186, the defendant was convicted of the

HARDESTY v. STATE. offense of selling intoxicating liquors on two counts, in the district court of Pawnee coun

(Court of Appeals of Kansas, Southern Departty, Kan., and sentenced to the county jail

ment, W. D. May 20, 1897.) for a period of 90 days, and to pay a fine of


RECOGNIZANCE. $300 and the costs of the prosecution. The

1. When a person is under bonds to appear defendant now appeals to this court.

before the district court of a county in Kansas, The error complained of is that the prose- he cannot be compelled to go from the jurisdiecuting attorney, trying the case on behalf of

tion of said court during the term at which he

is recognized to appear, by a subpæna to appear the state, in his closing argument to the jury,

and testify before the United States court. said: "If the defendant did not make these 2. A recognizance which requires the defendsales, why did he not go on the stand, and ant to “be and appear before the judge of the deny it?” This remark was made in the

district court of Ford county, in the 27th judicial

district of the state of Kansas, on the first day presence of the court, and is of record. The

of the next term thereof," when considered in defendant objected to the language of the connection with paragraph 5219 of the General county attorney, and the court instructed

Statutes of Kansas, is not void.

3. To be released from further liability upon a the jury that the comment of the county at

forfeited recognizance, a surety must do three torney was improper; “that the defendant things: First, he must furnish his principal; has a right to exercise his own discretion,

second, he must pay the costs of the forfeiture; and the fact that he failed to go on the stand,

third, he must tender a satisfactory excuse for

the failure of his principal to appear, as required and testify in his own behalf, should in no in the recognizance. sense prejudice the jury against him.”


(Syllabus by the Court.) tion 215 of the Criminal Code provides:

Error from district court, Ford county; A. “That the neglect or refusal of the person on

J. Abbott, Judge. trial to testify * * * shall not raise any

Action by the state against R. J. Hardesty. presumption of guilt, nor shall that circum

From a judgment for plaintiff', defendant stance be referred to by any attorney prose

brings error. Affirmed. cuting in the case, nor shall the same be considered by the court or jury before whom

Sutton & McGarry, for plaintiff in error. the trial takes place.” Our supreme court

Ed. II. Madison, for the State. has said: “We understand the statute is explicit that, when a defendant in a criminal DENNISON, P. J. This is an action upon case declines to testify in his own behalf, a forfeited recognizance, brought in the disabsolute silence on the subject is enjoined on trict court of Ford county, Kan. One Walcounsel in their argument on the trial, and ter Hart was arrested, charged in said disthat the court will hold the prosecuting at- trict court with the violation of the prohibtorneys to a strict observance of their duty itory law, and the clerk fixed the amount of in this respect.” State v. Tennison, 42 Kan. his bond at $300. While in the custody of 332, 22 Pac. 429. Justice Valentine, in deliv- the sheriff, he executed a bond in the sum of ering the opinion of the court in the case of $500, with himself as principal and this plainState v. Balch, 31 Kan. 465, 2 Pac. 609, a tiff in error, R. J. Hardesty, as surety; and, parallel case to the one we are now consider- upon the delivery of the same to the sheriff ing, said: “Yor can the principle be toler- of Ford county aforesaid, he was released ated that convictions for violated law may be from custody by virtue thereof. The condi

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