Winter v. Shutter

Opinion by Holt, C.: The bill of exceptions allowed by the justice of the peace did not-contain all the pleadings, and none of the evidence. We are therefore unable to learn definitely from the transcript what issues were tried in the justice’s court at the second trial. The defendants’ original answer was evidently set forth in full, but after the verdict of the jury in their favor it is stated that it was “amended so as to conform to the verdict.” ' What that amendment was, is not shown. It is in the transcript, however, that the second trial was had before the court without a jury, on the bill of particulars of plaintiff and the general denial and plea of offset of defendants, when the .court rendered a judgment for the defendants for $22.14. The original pleadings in the justice’s court should have been" set forth in full in the transcript, with all the amendments thereto that were allowed. Section 1126 of civil procedure before justices provides: “In all bills of exception it shall be competent for the party preparing the same to set out the pleadings, motions and decisions oí the justice of the peace thereon, and the whole of the evidence given, or so much' as may be necessary to preserve [546] the point or points decided on the trial, and the ruling and decisions of the court and the exceptions made thereto on the trial.” The word “competent” in this section evidently means sufficient. There is no provision in this section for setting out a part of the pleadings, as there is concerning the evidence, and it is fairly inferred that the pleadings should be set forth in full in the transcript. We think the bill of exceptions signed by the justice was insufficient for this reason, and the case should have been dismissed by the district court. The reasonableness of this rule is illustrated in this case. The decision of the district court was evidently based upon the plea of tender set forth in the transcript. That may have been stricken out when the defendants’ answer was amended so as to conform to the verdict of the jury in the first trial. It is not mentioned as being a part of the pleadings in the second trial before the justice. From the imperfect record brought here it was shown that that trial was had upon the bill of particulars of plaintiff and the general denial and plea of offset of the defendants. Nothing is said of the plea of tender which was originally filed by the defendants. It should be presumed, to uphold the judgment of the justice, that the defendants’ answer had been amended by striking out that plea. It was within the power of the justice’s court to allow such amendment. We call attention as bearing upon this point: Baird v. Truitt, 18 Kas. 120; Reilly v. Ringland, 39 Iowa, 106; Reynolds v. West, 32 Ark. 244. We recommend that the judgment be reversed^and the district court ordered to dismiss the petition in error. By the Court: It is so ordered. All the Justices concurring.