Butler v. McMillen , 13 Kan. 385 ( 1874 )

The opinion of the court was delivered by

Brewer, J.:

This is a contest over a county-seat. election in Neosho county. The contestants now, as heretofore, were Osage Mission and Erie. As the result of the canvass, the county commissioners declared that Erie had received a majority, and directed the removal of the county offices to that place. Plaintiff in error, who was plaintiff below, instituted this proceeding to contest the election, and to restrain such removal. The judgment of the district court was in favor of the defendant, and sustained the result of the canvass as declared by the commissioners. The record of the case is very voluminous, comprising 647 pages of legal cap. As errors in the proceedings of the district court, plaintiff alleges certain rulings in the introduction of testimony, permitting an amendment of the answer, and certain of the findings of fact, and conclusions of law. But preliminary to any inquiry into these matters we are met by a counter objection on the part of the defendant, which, if well taken, is conclusive of the case. The trial was commenced at the April Term 1872 of the district court of Neosho county. The plaintiff introduced his testimony, and rested. The defendant commenced his, and examined a witness or two. All this testimony was reduced to writing as it was given. Before the defendant had rested, the April Term closed, and the further hearing was postponed. The record reads as follows: “And the time fixed by law for the holding of said April Term of court having expired, this cause was continued from term to term until the April Term of said court 1873, when the same was resumed.” By law two terms intervened between the commencement and close of the trial. At the April Term 1873 the defendant finished his evidence; rebutting testimony was offered, and the case submitted to the court. The trial in April 1873 was treated as a continuance that began in April 1872, and as though there had been but an adjournment from day to day during the same term. There was no formal offering of the testimony as written down; no re-examination of the witnesses. Now it is insisted by counsel for defendant in error that the trial which commenced in April 1872 was ended by the close of the term, and that that in April 1873 was a separate, independent trial, and as at that time no testimony was offered supporting the plaintiff’s claim the judgment was properly entered for defendant. We think this objection of the defendant in error well taken. We do not understand that a case can be tried piecemeal in this way. Here two terms and a year’s time intervene between the term at which part of the testimony is heard, and that at which the remainder is introduced. If the case were tried before a jury, the impropriety would be more apparent, in view of the difficulty of securing the re-attendance of the same triers; but the impropriety would not be more real where a great length of time intervenes, as in this case. Undue weight will very likely be given to the testimony offered at one of the terms. The case is not presented to the consideration of the court in a symmetrical and well-proportioned manner. Impressions settle into convictions, while the manner of witnesses and much of the minutia which gave rise to those impressions are forgotten. It frequently happens that the testimony on the one side, even when not contradicted, is explained or qualified by that on the other, and when so explained or qualified carries a very different meaning from that which it conveys by itself alone. If this explanation or qualification is not heard for a year, it will often go but little ways toward changing the effect first produced on the mind. The whole force of the argument in favor of the statutory requirement that exceptions must be reduced to writing at the term, is against the propriety of a trial in the manner this was tried. Again, at common law, the judgment and all proceedings were entered and dated as of the first day of the term, as though it was but a single day’s duration, and there were no break or interruption of any kind in the session of the court. The idea seemed to be, that a trial was a continuous proceeding from its opening to its close. The jury were under charge of an officer, and forbidden to separate through the entire trial, and not as now, only when counseling upon the verdict. A criminal trial once commenced must be carried through to its close, and a failure to finish it was equivalent to an acquittal of the defendant. Jurors were and are summoned only for the term. Process for witnesses loses its force at the end of the term. Exceptions must be reduced to writing at the term. Questions even have been raised as to the power to continue a motion for a new trial to a subsequent term, though in Ohio and in this state it has been decided that such a motion could be continued. (Coleman v. Edwards, 5 Ohio St., 51; Brenner v. Bigelow, 8 Kas., 496.) In Ohio the continuance of such a motion does not carry with it the right to’make a bill of exceptions as to rulings upon the trial. (Kline v. Wyman, 10 Ohio St., 223; Morgan v. Boyd, 13 Ohio St., 271.) “All indictments and information shall be tried at the first term at which the defendant appears, unless the same be continued for cause.” (Crim. Code, § 157, Gen. Stat., p. 845.) “Actions shall be triable at the first term of the court after the issuse therein by the time fixed for pleading are or should have been made up.” (Civil Code, § 315, Gen. Stat., p. 689.) A trial docket is to be made out twelve days before the term, and actions set for particular days, and so arranged that they may be tried as nearly as possible on the days for which they are set. (Code, §313, Gen. Stat., 688.) We are aware that the statute empowers the court to continue.“an action at any stage of the proceedings.” (Code, § 316, Gen. Stat., 689.) But the question here is not as to the power to continue, but the effect of the continuance. The court may break up a trial at any time, and continue the case; but at the next term the trial must be recommenced, and cannot be taken up where it was left off. “A final adjournment of the court for the term operates as a legal discharge of a jury, and terminates their functions as such.” (Ashbaugh v. Edgecomb, 13 Ind., 466.) In Indiana there is a special statute applicable to cases where the time fixed by law for the close of a term comes in the midst of a trial. (2 Gavin & Hord’s Stat., 27, § 32; Dorset v. Rosenthal, 39 Ind., 209.)

Our conclusion then is, that inasmuch as the plaintiff at the April Term 1873 offered no testimony to support his case, the defendant was entitled to judgment, and that it is immaterial whether any errors were committed in the rulings in April 1872.. At the time the trial was resumed in April 1873 the defendant objected to any consideration of the testimony offered the year previous, and moved for a dismissal of the case, so that the matter was fully called to the attention of the district court. While we have been constrained to place our decision upon this ground, we deem it due to the parties litigant, and interested, and to the importance of the case, to say, that we have examined the whole record before us, and considered all the objections made by counsel for plaintiff in error to the various rulings of the district court, and that, while upon such record there appears a great conflict of testimony, yet in accordance with well-settled rules of decision we should have been compelled to uphold the findings of the trial-court upon the disputed questions of fact.

The judgment will be affirmed.

All the Justices concurring.