Anderson v. Roberts

Per Curiam:

This case was affirmed ( 86 Kan. 175 , •119 Pac. 354) upon the ground that the evidence justified a. finding that the surveyor had marked his report of the survey as though filed April 12, when it was in fact filed April 9, and that this was done at the request of an attorney of the party seeking to appeal. A rehearing was granted, and upon further consideration we are satisfied that although certain parts of the testimony tended to support that view, upon the entire record it appears beyond substantial controversy that the appellant’s attorney did not in fact induce the postdating of the filing marks, and that the appeal bond was filed in the justifiable belief that it was within time. A reversal will therefore be ordered, that the appeal may be heard upon its merits.

The appellant asks that we review a ruling of the trial court denying a motion to set aside the report of the survey because it shows upon its face that the surveyor proceeded upon a wrong theory. We think there is no occasion for passing at this time upon the meaning, effect or validity of the report. The report is somewhat obscurely worded, and perhaps indicates an erroneous theory of the surveyor. But the appeal brings up the whole matter for examination, and justice can be done upon a full hearing. It may be that the result of the survey is correct although in the report the grounds for it are not correctly stated or ar.e omitted.

The judgment of dismissal is reversed and the cause is remanded for a hearing upon the merits.