Hagaman v. Neitzel

The opinion of the court was delivered by Brewer, J.: Neitzel sued Hagaman before a justice of the peace, and obtained judgment for $125.85. Hagaman took the case by petition in error to the district court, and the judgment was affirmed. Of this he'now complains, and asks a reversal. The principal question discussed arises upon a statement of facts in the transcript from the justice’s docket. It should be noticed that this transcript shows the filing of a bill of particulars, the issue and return of summons, with a [387] copy of the constable’s return upon the writ, a trial, the defendant not appearing, and a judgment. The summons was returnable on the 4th of December 1873, at 9 A. M. Preliminary to the record of the trial is this statement: “And now to-wit, on this 4th day of December 1873, this cause came on for hearing; defendant being in the justice’s office requested to know what time it was, and was informed by the justice that it was ten minutes past ten o’clock by his watch, whereupon the defendant requested that the case be called. The plaintiff was not present, but had beén in a few moments before, about fifteen or twenty minutes to ten o’clock A. m. The justice stated that the constable was now preparing' a more suitable room for the trial of this cause, and it would be called in a few moments. Defendant departed, and was not in court again by himself or counsel. Shortly after the plaintiff entered the justice’s office, and claimed that the hoiir of trial had not arrived, and produced a watch indicating time at ten minutes to 10 A. M., and insisted upon trial of this case, and would risk judgment if it should be in his favor. Thereupon defendant was Called three times, and did not answer, and was not in court during the trial. Trial had,’-’ etc. 1 justices com-ts-docket entries, [388] 2.unauthorized viewauk [387] Upon this it is contended by Hagaman that he had a right to depend upon the reply of the justice as to the time, and that when the hour for the trial arrived the justice must, if the plaintiff were not present, have dismissed the action, and had no jurisdiction to proceed to.a trial thereafter in his (defendant’s) absence. On the other hand it is insisted, as a preliminary matter, that this statement of facts is not so presented that any notice can be taken of it. The matters contained in the statement are not matters which properly form a part of the record, and are not preserved in any bill of exceptions. And this we think is correct. The statement is simply one of conversations between the justice and the resPective parties. It contains nothing which the gtatute requires should be entered upon the justice’s docket. (Justices Act, § 188.) The justice was under no obligations to enter it upon his do'cket. It was a mere volunteer act on his, part. So far from being under obligations to enter it, he ought not to have done so. He has no right [388] to burden a transcript with other matters than those the law requires him to place thereon. A party aggrieved by any act or ruling of his may have the same preserved in a bill of exceptions. One was taken in this very case in reference to some other matters, as will hereafter appear. And if a party does not care to avail himself of this right, he has no cause of complaint. The mere fact that this statement is found on the justice’s docket gives us no right to examine and act upon it. It must be properly there, being either of those matters the law directs to be entered, or else preserved in a bill of exceptions. McArthur v. Mitchell, 7 Kansas, 173; Backus v. Clark, 1 Kas. 303; Atschiel v. Smith, 9 Kas. 90. While we do not think this statement properly before us for decision thereon, we may say that it does not appear but that the justice called the case for trial at exactly 10 o’clock by the correct time; and further, that if a justice does delay calling a case a few moments past the trial-hour, as appears by his watch, to allow for differences in time by different watches, or to have a suitable room prepared for the trial, and notifies a party then present that he will call the case in a few moments, and does so call it, he commits no error so far affecting the substantial rights of such party as to compel a reversal. We do not mean by this that a justice may arbitrarily wait an indefinite time,“but simply that an allowance of a few moments, accompanied by notice to a party who is present, works no substantial injury to that party. 4 Exceptions to testimony. [389] 5. Trespass upomanas. [388] The other error complained of is presented in a bill of exceptions. The bill of particulars claimed among other things to rec°ver for 22 loads of stone, and 146 feet of fence. The total claim was $179.35, and included many other articles. Upon the trial the justice received and considered evidence to prove that defendant entered upon the land of plaintiff without his permission, and quarried and carried away a quantity of stone, and also entered, tore down, and carried away, certain posts and boards, and that these were the stone and fence sued for, and also received and con [389] sidered testimony tending to prove an account arising on contract. No objection was made to the introduction of this evidence, and no exceptions taken. Besides, it does not appear that there was any effort to recover for the trespass, but only the value of the articles taken. A party can always waive'the trespass and sue for the value of the property taken, and the law will imply a promise to pay. Bernstein v. Smith, 10 Kas. 60. These being the only matters- complained of, the judgment will be affirmed. All the Justices concurring.