Long v. Froman

Opinion by Gbeen, C.: The plaintiffs in error sued the defendants in error in justice’s court in Wyandotte county for the sum of $ 183, upon an account for groceries sold and delivered to them. At the time the suit was brought attachment proceedings were also instituted, upon the ground that the defendants were about to remove and dispose of their property, with the intent to hinder and delay their creditors, and levied upon a general stock of groceries. Upon the day set for the trial of the case before the justice, the parties appeared, and a motion was made to discharge the attachment. This motion was heard by the justice, upon affidavits and oral evidence offered by the respective parties. [365] After hearing the evidence, the court overruled the motion to discharge the attachment, and gave judgment in favor of the plaintiffs for the amount claimed. The trial occurred on the 12th day of November, 1888. Three days thereafter the defendants in error had a bill of exceptions allowed, signed, and filed, and made a part of the record of the justice of the peace. On the 17th day of November, 1888, the defendants instituted proceedings in error in the district court to reverse the ruling of the justice in refusing to discharge the attachment, and filed with their petition in error the original bill of exceptions, containing certain affidavits and oral evidence given upon the motion to discharge the attachment. A motion was afterward filed by Long Bros, asking that^ the proceedings in error be dismissed, upon the ground that no transcript or true bill of exceptions had been filed with the petition in error. Leave was obtained by Eroman & Webb to withdraw the bill of exceptions and substitute a certified transcript, which was done, the successor of the justice of the peace certifying to the same. The motion to dismiss the proceedings in error was then overruled by the district court. The petition in error was heard in the district court as upon motion, and was sustained, and an order entered discharging the attachment in justice’s court, to which the plaintiffs in error excepted, and now ask that the order of the district court discharging the attachment be reversed. It is urged: 1. That no true bill of exceptions was attached to the petition in error. 2. That no proper proceedings in error from the justice of the peace to the district court were commenced in-time and in the manner required by law; and that the district court erred in permitting the plaintiffs in error in that court to amend their petition in error by detaching the original bill of exceptions and attaching a transcript with a certified copy of the original bill of exceptions. 3. That the district court erred in reversing the order of [366] the justice of the peace in the attachment proceedings, because some of the evidence was oral. These assignments of error we will consider in their order. Our attention is first called to the fact that the bill of exceptions was allowed, signed and filed without submitting the same to opposing counsel for suggestion and amendment; and that it did not show by any indorsement thereon that it was ever filed anywhere. It has long since been held that a bill of exceptions may be allowed and signed for one party in the absence of the other, and without notice to the other party, though such power should be exercised with great care and prudence. (McClure v. M. R. F. S. & G. Rld. Co., 9 Kas. 373.) A^ reference to the record discloses the fact that the justice made the following entry upon signing the bill of exceptions: “On this 15th day of November, 1888, the defendants presented their bill of exceptions in this case, which was by me allowed, filed, and made a part of the record.” This we think is sufficient to show that the bill of exceptions was properly filed in- the office of the justice of the peace, and fully answers the first objection. It is next urged that no proper proceedings in error were instituted within the time required by the statute, and that the district court should have sustained the motion to dismiss the case, and that the amendment permitting the plaintiffs in error in the district court to detach the original bill of exceptions from the petition in error and attach a transcript from the justice’s court, with a certified copy of the original bill of exceptions, to the petition in error, should not have been allowed. The petition in error was filed in time, and we think the district court had the power to grant the amendment; and we cannot, as a reviewing court, say that it abused its discretion. This court allowed a similar amendment in the case of L. N. & S. Rly. Co. v. Whitaker, 42 Kas. 634. The last objection we shall consider is that, the district court erred in reversing the order of the justice of the peace [367] sustaining the attachment. It is claimed, that because there was oral evidence, the district court could not review the decision of the justice of the peace. In this case the evidence was in the shape of affidavits and some oral testimony, and we think we can safely assume that all of the evidence was embodied in the certified copy of the record and the bill of exceptions. It is stated that all of the evidence is set out in the record. We have carefully read the evidence as embodied in the record, and we cannot say that the district court erred in reversing the judgment of the justice of the peace. Reviewing courts will not ordinarily weigh conflicting oral evidence ; but where the evidence is such as to satisfy a reviewing court that the attachment ought not to be sustained, and it so decides, we do not feel justified in reversing such judgment when in our judgment it is sustained by the evidence. It is recommended that the judgment of the district court be affirmed. By the Court: It is so ordered. All the Justices concurring.