City of Newton v. Toevs

The opinion of the court was delivered by Benson; J.:

A motion has been made to dismiss the petition in error because the case-made was not signed in time. The case was signed on the day to which the time allowed therefor had been last extended, which *18 was too late. (Maynes v. Gray, 69 Kan. 49 .) This seems to be conceded. A transcript of the record, however, is included in the case-made and the motion can not be sustained.

The defendant alleges error in sustaining the plaintiff’s demurrer to one of the defenses contained in his answer, and in overruling his demurrer to one of the grounds of the reply. As these decisions were made more than one year before the record was filed in this court they can not be reviewed. (Corum v. Hubbard, 69 Kan. 608 ; Gas Co. v. Altoona, 79 Kan. 466 .)

Motions to require the plaintiff separately to state its causes of action and otherwise correct its petition were denied, and this ruling is also complained of. The only cause of action was the failure of the defendant to account for and pay over to his successor the money in his hands as treasurer. Incidental to this charge some of the items of alleged shortage are specified, but these are not separate causes of action and the ruling was not erroneous.

The defendant demanded a jury trial, but the case involved the examination of long accounts and was a proper case for reference. (Civ. Code, § 292; Gen. Stat. 1901, §4739.)

The defendant alleges error in the refusal to set aside the report of the referee, on the ground that time had not been allowed by the referee to prepare a bill of exceptions before filing his report. A bill of exceptions was allowed by the court upon the denial of this motion, which discloses the facts concerning the filing of the report, the notice thereof given by the referee, the efforts made to secure transcripts of the evidence, the motions for continuance and the rulings thereon, and the other proceedings before and at the time the report was confirmed, as set out in the statement above.

The bill of exceptions was presented and signed too late — the rule being the same as stated above with reference to a case-made (The State v. Burton, 70 Kan. *19 199 ), but treating the matters contained in it as properly presented here it appears that the defendant did not at any time ask to have the report withheld from the files until he could prepare a bill of exceptions containing the evidence to be presented to the referee for allowance, nor to have the report referred back to the referee, or the reference held open or reopened for that purpose. Nor did he ask for an order requiring the referee to report the evidence. It may be presumed that what the defendant desired to accomplish was to have the evidence presented to, and reviewed by, the court to determine whether it supported the findings of the referee against him. In this situation it would have been good practice to apply to the referee for the allowance of a reasonable time to prepare exceptions containing the evidence, which should be granted. (Civ. Code, § 295; Gen. Stat. 1901, §4742; Davis v. Finney, 37 Kan. 165 .) If in this case the time was insufficient to permit such application to be made, the defendant should have applied to the court or judge for an order requiring the referee to allow such time. If the report was filed before the application could have been heard, the court might still have referred the report back to the referee for this purpose. Or an order might have been asked for requiring the referee to report the evidence. But none of these steps was taken, and the evidence was not brought before the court.

The defendant contends that the evidence does not support the findings. As the proper steps to have the evidence reviewed in the district court were not taken, and the evidence was not before that court, it can not properly be reviewed here. We have, however, examined that part of the evidence abstracted by the defendant, and it appears to support the findings to which it relates. We must presume that this is true of the great mass of evidence not abstracted.

*20 Complaint is made because transactions that had occurred eight to fourteen years before the suit was begun were investigated. The defendant ought not to complain of this, for he filed a stipulation expressly waiving, the defense of the statute of limitations, thereby consenting to, if not inviting, an investigation of the accounts referred to in the petition, without regard to the lapse of time.

It is not necessary to consider whether the transcripts of testimony taken before the referee were properly authenticated as a part of the record under section 1 of chapter 320 of the Laws of 1905, for the evidence was never brought before the district court for its consideration.

The referee expressly found that the shortages were not caused by intentional wrong but arose out of errors in keeping the accounts. Upon a careful examination of the record and the evidence abstracted, no error is found in the proceedings. It is believed that the result would not have been different if all the evidence had been before the district court.

The judgment is affirmed.