McGowen v. Campbell

The opinion of the court was delivered by Horton, C. J.: Upon the hearing of the petition in error in the district court, the plaintiff in error (defendant below) objected to the consideration of the bill of exceptions allowed [28] and filed by the justice of the peace, upon various grounds. We will notice these, seriatim. It is urged that as the bill of exceptions was not under the' seal of the justice, it was therefore a nullity. Not so. A justice of the peace is not required in any case to use a seal, for there is no provision of law anywhere providing him with a seal. (Stager v. Harrington, 27 Kas. 415.) 1. Bill of exception when part of record. It is also contended that as the bill of exceptions was not copied at length in the docket of the justice, it was no part of the record or transcript of the case. This objection is not tenable. After a bill of exceptions has been allowed and signed by a justice, if the same is filed at once by him, it thereby becomes a part of the record. J 3 J C It need not be entered in full upon the docket of the justice, as the law makes no such requirement. (Justices’ Code, §112.) It is further claimed that the transcript is not properly certified. The transcript contains the following words: “A copy of which bill of exceptions is hereto attached, marked ‘A,’ and made a part hereof.” At the end of the bill of exceptions are these words: “The State oe Kansas, Mission Township, ss. — I do hereby certify that the above and foregoing is a true copy of the bill of exceptions filed in my office November 21, 1881, John Y. Owens, J. P.” At the close of the transcript is the following certificate: “I do hereby certify that the above and foregoing is a full and true copy from my docket of the proceedings had by and before me at my office, in said township, in the above and foregoing action. John Y. Owens, J. P.” The statement in the transcript is sufficient to make the-copy of the bill of exceptions a part thereof, and the certificates make the transcript as full and complete as the law requires. Counsel further attacked the transcript in the district court, upon the ground that the following words, “A copy of which bill of exceptions is hereto attached, marked ‘A,’ and made [29] a part hereof,” were improperly incorporated therein, and renews the attack in this court. It appears from the record that these words were interlined in the handwriting of one of the counsel for defendant in error, after the transcript had ■been made out and certified to by the justice. But it further appears that the counsel saw the justice personally about the interlineation, and that officer fully approved and ratified the insertion of these words in the transcript. It therefore came before the district court the same as if the words had been interlined by the justice before being filed in that court, and the district court committed no error in treating these words as a part of the transcript. There was no necessity for a new transcript to be filed, and all the objections to the validity of the record presented to the district court were properly overruled. It is insisted that an order of the justice overruling a motion for a new trial is a matter of discretion purely, and not the subject of review on error. This objection is disposed of adversely thereto in Stager v. Harrington, supra; see also Theilen v. Hann, 27 Kas. 778. Again, it is said that no proper motion for a new trial was filed with the justice. The motion contained the various ■grounds embraced in §110, and also other grounds, which possibly the justice had no authority to consider. Yet as valid and legal grounds for a new trial were contained in the motion of the party aggrieved, the fact that other reasons were alleged therein would not defeat the consideration of the' motion, or authorize the justice on account of the insertion •of such additional matters to refuse a new trial if any of the ■statutory grounds actually existed. Owing to the absence of a material witness, the plaintiff ■applied to the justice for a continuance of the case for about twelve hours. The justice seems to have thought that due diligence was ■shown, but when the defendant below consented that the affidavit presented for a continuance might be read and treated as the deposition of the absent witness, the justice of the [30] peace overruled the application, and ordered the trial to proceed. This was against the objection of the party applying for the continuance, who insisted that he did not wish to have the affidavit read as the testimony of the absent witness, as he desired his personal attendance. The justice proceeded with the trial nearly all night, the jury returning their verdict at five.o’clock on the morning of November 12th. Plaintiff' below read the affidavit for continuance as the deposition of the absent witness. But C. A. Cox, one of the attorneys of defendant below, in his argument to the jury, among other things said, with reference to the affidavit: “This is what Campbell swears Layfield will swear to; Campbell has been impeached. His neighbors swear they will not believe him under oath. His reputation is bad. You cannot believe Campbell; what will you say of this deposition?” At this point, one of the counsel for plaintiff below objected to the remarks of Mr. Cox; whereupon Mr. Cox remarked to the jury: “All right; I will withdraw what I have said, and leave that for Mr. Stillwell.” To these remarks plaintiff below at the time exc.epted, and thereupon Mr. Stillwell, counsel for defendant below, said: “.Make such exceptions as you want to. I will go for him worse than that when I get after him.” After Mr. Cox had closed his argument, Mr. Stillwell addressed the jury on behalf of the defendant below, and among other things, said, referring to the affidavit read as a deposition: “We are bound to treat this affidavit as the deposition of Layfield, but you have not seen Layfield’s face; you have not heard his voice; there has been no opportunity for cross-examination ; you have no means of knowing what the witness would have testified to on cross-examination.” [31] 2. Continuance in justices' courts. [30] The continuation of the trial during the night was an unusual and unjust proceeding, and one not at all in accordance with a fair or proper administration of justice. Special circumstances might possibly, justify a court in proceeding with a trial until after midnight; but the mere fact that a criminal charge was pending against the defendant below, to which he [31] was required to answer on November 12, 1881, before a justice in another township, was not a sufficient excuse for keeping open the court all night, as the case might have been adjourned, if it were deemed necessary, until after the conclusion of the hearing of the criminal charge. The remarks of counsel concerning the affidavit were greatly out of place,, after the statement to the justice that it should be treated as a deposition. See. 317 of the code, providing that no continuance shall be granted on the ground of the absence ot evidence it the adverse party consent that on the trial the facts alleged in the affidavit shall be read and treated as the deposition of the absent witness, has no application to justices’ courts. Secs. 81 and 82 of the justices’.code make provisions for the adjournment of trials before justices, and thereby special provision is made by the statute for continuance in justices’ courts. 3. Verdict by undue means. While an application to a justice of the peace for an order of continuance is not reviewable on petition in error, (Theilen v. Hann, supra,) yet, taking all of the circumstances of the trial before the-justice, including the remarks of counsel upon the affidavit, and the continuation of the trial during the night against the ob~ jection of the plaintiff below, we think we- are noj wrong ¡n characterizing the verdict as having been obtained by undue means. As the conclusion we have reached sustains the action of the district court, and as the case below must be retried, we decline to enter upon an examination of the other questions submitted. The judgment of the district court will be affirmed. All the Justices concurring.