Hammerslough v. Hackett

The opinion of the court was delivered by Horton, C. J.:

A preliminary question is presented in this case upon the motion made by defendant in error (plain *61 tiff below) to dismiss. The facts are, the judgment was rendered and entered August 1, 1882, and the plaintiff in error (defendant below) was given sixty days to make and serve a case-made. The case-made was served on the 26th day of September, 1882, that day being within the time allowed by the court for that purpose. Within three days thereafter the plaintiff below suggested amendments thereto in writing; on the 5th day of October, 1882, the parties by their attorneys appeared before the judge pro tem. to settle the case. The amendments suggested were agreed upon and incorporated in the case-made. Thereupon the defendant below asked the judge pro tem. to settle and sign the ease-made as amended, and plaintiff below asked the.judge to strike out the words, “This was all the evidence offered on either side.” The court examined the papers and exhibits, and then directed additional matters of evidence, which had been omitted therefrom, to be added to the case, and overruled ” the motion to strike out the words complained of. On the 17th day of October, 1882, the parties again appeared before the judge by their attorneys, and the case was settled and signed, and then attested by the clerk, with the seal of the court attached.

It has already been decided that the judge of a district court, in settling a case-made for this court, has the power, on his own motion, or at the suggestion of either party and before signing a case-made, to make such alterations, erasures and additions in the case-made as may be necessary to make it speak the truth. (Sloan v. Beebe, 24 Kas. 343 ; Building Association v. Beebe, 24 Kas. 363 .) Therefore the judge was guilty of no impropriety in directing certain omitted testimony to be incorporated in the case-made. He might have made the additions himself, or directed either of the parties to do so. The postponing of the settling and signing of the case-made from the 5th day of October to the 7th of that month seems to have been solely for the purpose of incorporating in the case-made the omitted testimony, in order that the case-made might be in all matters correct and complete. *62 This action on the part of the judge was not extending the time for making the case after the time fixed by the order of the court had once elapsed. As the case was duly made and served within the time allowed, and the amendments thereto properly suggested, the judge had all reasonable time thereafter to examine the same before settling and signing it. He was not required to sign the same until all the additions were added that he deemed necessary to be added to make the case speak the truth. While the statute provides for fixing the time in which the case-made must be served, and in which the amendments must be suggested, the time for settling and signing the ease by the judge is not prescribed in the statute; therefore the objection that the case was not made within the proper time is not well founded.

As the clerk has attested the case and attached the seal of the court, the objection to the certification is also untenable. While perhaps it would be a little more regular for the case-made to show upon its face that the judge had directed the clerk to attest the case and attach the seal of the court thereto, yet we are not to assume that the clerk affixed his signature and the seal of the court to the case-made without the direction of the judge settling and signing the same. After the judge to whom the case and amendments had been submitted had settled and signed the same, it was his duty to cause the clerk to attest the case and attach the seal of the court thereto. The presumptions are that the judge performed his duty, as the case-made is properly, attested and sealed. Therefore we may assume the judge caused the record to be attested and the seal of the court to be attached.

The alleged errors mostly concern the exclusion of testimony. The common source of title of the land in controversy was in one George W. Campbell. As tending to establish his title to the land and his right to convey the same at the date of the execution of his deed, plaintiff in error, after he had introduced proof that he had never had the originals in his possession, offered in evidence a certified copy of the mortgage of the premises from Geoige W. *63 Campbell to L. Levison & Co., of the date of October 6, 1866, and of record in the office of the register of deeds of Coffey county, in this state; then a certified transcript bf the proceedings of the district court of Miami county foreclosing this mortgage, which mortgage embraced lands lying in both Miami and Coffey counties; then a certified copy of the sheriff’s certificate of sale under such foreclosure of the date of June' 8, 1869, of record in the office of the register of deeds of Coffey county; then a certified copy of the sheriff’s deed of the premises to Levison & Co., of the date of the 29th day of September, 1873, and of record in the office of the register of deeds of Coffey county. He attempted to supplement this evidence by the production of an original deed of the date of the 21st day of July, 1882, from Levison and others to himself of the same premises as a substitute for the lost deed of L. Levison & Co. of March, 1874. Thereupon the counsel of defendant in error called the court’s attention to a notice served July 10, 1882, upon the attorneys of the opposite party requiring such party or his attorneys to deliver a copy of any deed, instrument, or other writing whereon the defense in the action was founded, or which they intended to offer in evidence at the trial of the cause, and objected to the introduction of all of said papers and records, for the reason that no copies thereof had been delivered as demanded by the notice. It was also objected that the evidence was incompetent and irrelevant. The court admitted the transcript of the record of the foreclosure of the mortgage from Campbell to Levison, but excluded copies of the records from the office of the register of deeds of Coffey county, and also excluded the original deed from the Levisons and others of the date of July 21, 1882.

It is apparent to us, from an examination of the proceedings, 'that the court rejected the copies of the records not admitted, because the other party had long before demanded in writing, copies of all papers intended to be used, and these papers had not been furnished. The rulings of the court upon these matters were erroneous, as the papers offered do *64 not come under the statutory rule. They were copies obtained from the public records, equally accessible to all the parties. Section- 369 of the code does not apply to copies of records of this character. The copies of all deeds, instruments or writings of which the plaintiff in error never had the possession or control, and which were of record either in the district courts of Miami or Coffey county, or in the office of the register of deeds of Coffey county, material to the case and otherwise sufficient, ought to have been admitted, notwithstanding the notice of July 10, 1882.

After the plaintiff in error had read in evidence a mortgage of the premises, between defendant in error and her husband, to Foreman & Friedlander, of the date of February 27,1879, to secure a promissory note of that date for the sum of $600, bearing seven per cent, interest per annum, he attempted to offer in evidence a transcript of the records of Coffey county, in this state, in the case of Lathrop & Smith, plaintiffs, v. Margaret Hackett and Thomas J. Haekett, defendants, wherein the mortgage to Foreman & Friedlander was foreclosed, and also a sheriff’s deed of the date of July 29, 1881, transferring said premises under the foreclosure proceedings to said Lathrop & Smith. This testimony was also excluded. In this exclusion, however, we do not perceive error because the record does not show a sufficient and legal publication of the summons by which the defendants were brought into court. It is true that at a subsequent term of the district court of Coffey county, the plaintiff, in the foreclosure proceeding, attempted to amend the record by proof that there had been a legal publication prior to the rendition of the judgment of foreclosure, and if notice of such amendment or correction had been properly served upon the opposite party, the defect in the proof of publication could have been cured by amendment, so as to conform to the facts; but while the power to amend exists, and justice requires that amendments shall be made, if the facts originally existed to justify correction, such amendment cannot be made after the action has been disposed of and the term ended, without special or additional *65 notice. (Ins. Co. v. Kellogg, 82 Ill. 614 ; §§ 532, 534, 536, and 538 of the Code.)

All the amendments in the case of Lathrop & Smith v. Hackett & Hackett at the July term of the district court of Coffey county for 1882, being long after the final disposition of the original case, and being wholly without notice, either personal or by publication, must be disregarded as void. (Ins. Co. v. Kellogg, supra.)

"We have purposely omitted to comment upon many of the allegations of error, for the reason that while the record- in this case consists of 128 pages of manuscript, the briefs do not refer to any of the pages of the record which counsel ask us to examine, and because prior to another trial the plaintiff in error will undoubtedly apply for and obtain leave to file his amended and supplemental answer, tendered during the trial, and which sets forth with great particularity the title alleged to be possessed by him, and also copies of deeds, records and other papers upon which he relies to sustain his defense. Therefore many of the questions now presented are not likely to trouble the trial court again.

The judgment of the district court will be reversed, and the cause remanded for a new trial.

All the Justices concurring.