M. K. & T. Railway Co. v. Roach

The opinion of the court was delivered by Brewer, J.: A motion is made by defendants in error to strike out the “case-made,” and dismiss the petition in error; and it seems to us that the facts as disclosed by the record bring the case within the principles announced in the case of Weeks v. Medler, (ante, 425.) On January 11th 1875, the motion for a new trial was overruled; and sixty days from the rising of the court granted in which to make a case. When the court adjourned does not appear, but on the 1st of March 1875 a copy of the case-made was served on opposite counsel, as appears by their acknowledgment of service. Nothing further then appears save this certificate of the trial judge, and filing of the clerk of the court: “ Signed, settled and allowed as and for a case-made for the supreme court of Kansas, this-day of--, A. D. 18 — . John R. Goodin, Judge. “Filed, July 19th, 1875. John D. Cory, Clerk.” Now in the case of Weeks v. Medler, it was held, that “the record should show affirmatively the previous steps necessary to the settlement of the case, in the absence of the appearance, or proper waiver by the opposing party.” Here the record fails to show any notice to the opposite party of the time and place of the settling of the case, any appearance or waiver by such party, or the time in which the case was in fact settled. For aught the record discloses, it may have been signed and settled the very day the copy was served on opposing counsel, as in Weeks v. Medler, and without giving them the three days in which to suggest amendments. It nowhere appears that the judge considered any amendments, or that any were suggested, or that counsel had none to sug [594] gest, or that they had waived in any manner their right to suggest them. For these reasons the motion must be sustained, and the case will be dismissed. All the Justices concurring.