Lee v. Loveridge

The opinion of the court was delivered by Brewer, J.: Prudence Lee brought an action before a justice of the peace and recovered a judgment for $239.30. The defendant Lee Loveridge filed his petition in error in the district court to reverse such judgment and obtained a judgment of reversal. Plaintiff in error now prosecutes her proceeding in error in this court seeking a reversal of the judgment of the district court, and an affirmance of that of the justice. Two grounds of error were alleged in the petition filed in the district court. First, “that the justice erred in overruling a motion to dismiss, for want of service of summons.” This point is not pressed by counsel in their brief, and the record shows service at the residence. Second, “ Error in overruling a motion for continuance.” It is a sufficient and complete answer to this averment that no exceptions were taken, and therefore if there was any error it was waived: Laws 1870, p. 186, ch. 88, §§13, 14; Small v. Douthitt, 1 Kas., 335; Koehler v. Ball, 2 Kas., 160; Grundstaff v. [488] Scoffin, 5 Kas., 165; Lalonde v. Collins, 5 Kas., 361; Kykendall v. Clinton, 3 Kas., 85. This last case is exactly in point, and decisive of the question. Counsel for" defendant in error state in their brief that after the judgment of reversal in the district court the case was tried in that court de novo upon all the issues, and judgment rendered in his favor. The record shows no such fact, and of course it were useless to speculate as to the effect of any such judgment. The district court erred in reversing the judgment of the justice. The case will therefore be remanded to the district court' with instructions to set aside its order of reversal, and to affirm the judgment of the justice. All the Justices concurring.