Kansas Pacific Rly. Co. v. Simpson , 11 Kan. 494 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

In an action between these parties the defendant in error recovered a judgment against the plaintiff in error in the district court of Douglas county for the possession of certain real estate. Plaintiff in error, purposing to seek a reversal of that judgment, caused a case made to be prepared, signed by the judge, and attested by the clerk. Thereupon the defendant in error, claiming that such case made was fraudulently obtained, brought his action in the same court to restrain the plaintiff in error from using it, and to vacate the order approving and ordering it filed. He obtained a temporary injunction, which is now by this proceeding in error sought to be vacated and set aside. And the question presented is, whether under the allegations in the petition, the relief prayed for can be granted. Since the decision of this court in the case of McClure v. Mo. River, Fort Scott & Gulf Rld. Co., 9 Kas., 373, it can hardly be doubted that a party can proceed by independent action in the district court to have a case-made or bill of exceptions set aside. But in order to sustain such action two things must appear: first, that the bill of exceptions or case made is untrue in fact, and second, that it has been fraudulently obtained. Neither of these is sufficient of itself. It not infrequently happens that error creeps into a bill of exceptions that has been regularly obtained. Through the neglect of the counsel, or misrecollection of the court, something is omitted which should have gone into the record, or something stated which did not in fact take place. To make such error alone the ground for setting aside a bill of exceptions would be the loosest kind of practice, and open the door to untold wrongs. It would be for the interest of the successful party to permit error in the record that thereby he might avoid the bill of exceptions and prevent any review in the higher court. So, on the other hand, if the bill of exceptions or case made be true in fact, and regularly signed, it ought not to be set aside although the signature of the judge was obtained by fraud Or misrepresentation. If it state the truth, neither party is wronged. The upper court can determine the controversy between the parties according to the very right of the case. A plaintiff is not entitled to relief by simply showing that the defendant has done wrong. He must also show that the wrong of the defendant has deprived him of some right. The successful party in the lower court has a right to have the proceedings of that court truly presented to the appellate tribunal. He has no right to have those proceedings falsely presented in his favor. And where the misconduct of the opposite party has only deprived him of the advantage of a false presentation it has deprived him of no legal right. In this case the allegations of the petition are, in general terms, that the signature of the judge was obtained by the false representations of the plaintiff in error. It is nowhere intimated that the bill of exceptions or case made does not state the very truth, or that the additions claimed to have been made intermediate the examination by. the defendant in error and the signature of the judge are not in exact accordance with the facts of the case. Under these circumstances the defendant in error was not entitled to have the case disturbed, or the plaintiff in error restrained from using it.

The judgment of the district court will be reversed, and the case remanded for further proceedings.

All the Justices concurring.