Taylor v. Mason , 28 Kan. 381 ( 1882 )

The opinion of the court was delivered by

Brewer, J.:

Defendant in error commenced an action in the district court of Wyandotte county, to recover the sum of $300 for professional services in examining titles, preparing abstracts, etc. He recovered a verdict and judgment for $150, and the defendant, as plaintiff in error, brings the case here for review. He has attempted to bring the proceedings here in a case-made, and the sufficiency of this case-made is challenged by defendant in error. The judgment was rendered April 20, 1881, and sixty days were given to make a case. The service of the case was acknowledged June 16, 1881, and service of suggestions of amendments June 18,1881. After the acknowledgment of service the record contains what purport to be proceedings for the appointment of a receiver, and the sale of certain lots — all transpiring between August 8, 1881, and December 21, 1881. All the proceedings in the case, including the trial and the subsequent matter of receivership and sale, were had before Hon. Hiram Stevens, the regular judge of the district, whose term of office expired in January, 1882. The record contains no order giving time for making a case as respects the proceedings subsequent to the trial. After December 21, 1881, the only thing appearing is the following certificate of Hon. Hiram Stevens, then ex-judge, and of date April 12, 1882:

“The above and foregoing contains a full and complete statement of all.the proceedings, rulings, judgments, orders and evidence in the said district court for said county of Wyandotte, Kansas; and the judge of said court is respectfully requested to sign the same, as a true case-made for the supreme court, which is accordingly done this 12th day of April, 1882. Hiram Stevens,

“Late Judge Tenth Judicial District, Kansas.”

There is no other certificate or authentication by the clerk of any portion of the record, it coming to us simply as a case-made upon the certificate of Judge Stevens. Besides this, the plaintiff in error has filed notices dated and served April 3d, and April 8th, 1882, of an intention to present the case and amendments for settlement. Now upon this we remark that none of the proceedings subsequent to the trial and judgment, are properly preserved for review. These proceedings terminated on December 21, 1881. The time for making a case was not extended. No case containing these proceedings was ever served, and the first thing that appears after December 21, is the notice on April 3 that the case would be presented for settlement. Now the code (§ 548) requires that a case-made should be served within three days unless the time therefor be extended. The order of April 20, 1881, giving sixty days to make a case, spent its force when on the 16th and 18th days of June following the case-made was served and amendments suggested. The proceedings had thereafter, and after the expiration of the sixty days granted by the original order, could not properly be incorporated into that case. Whatever took place subsequently would have to be preserved by a bill of exceptions or a new case-made. Counsel for plaintiff in error files an affidavit stating that he caused a bill of exceptions to be made and signed in December, 1881, but that such bill of exceptions has been lost or stolen. This fact, however, would not authorize the incorporation of these subsequent proceedings into the prior case, nor the making of a case after the time prescribed by statute. We may thérefore disregard entirely any questions arising upon the proceedings subsequent to the trial. It is also at least doubtful whether any case-made was properly authenticated. The judgment was in April, 1881, and sixty days were given to make a case. This time would expire in June, 1881. Hon. Hiram Stevens was then judge, and remained so until January, 1882, more than six months after the time fixed for making-the case had expired. The case-made does not appear to have been signed until April, 1882, three months after the expiration of Judge Stevens’s term of office, and is signed by him as ex-judge. The provision of the statute applicable to cases of this kind is found in § 549, and reads: “ In all causes heretofore or hereafter tried, when the term of office of the trial judge shall have expired, or may hereafter expire during the time fixed for malting or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his term had not expired.”

Now, as Judge Stevens’s term of office did not expire until more than six months after the time fixed for making a case, and indeed after the case had been made and served and amendments suggested, it may well be doubted whether his authority to act in the matter did not end with the expiration of his term of office. We know that the statute in the same section provides that the case-made shall be settled and signed by the judge who tried the cause, aud it has been held that independent of any statute the judge who tried a cause has' authority after his term of office to settle and sign a case-made. (Thurber v. Ryan, 12 Kas. 453, and cases cited therein from the supreme court of Wisconsin.) But still it is questionable, at least, whether, where the statute has made special provision for the signing and settling of cases-made by the trial judge after the expiration of his term of office, he can act in any other way or under any other circumstances than those named in the statute. We shall not, however, decide this question definitely, for we do not consider any of the objections taken to the proceedings on the trial as well founded.

The only two matters of error alleged are: First, that the court improperly permitted an agency to be proved by evidence of the statements of the agent; and second, that the verdict is not sustained by the evidence. Neither of these is well founded. It appears from the evidence that Taylor lived in Kentucky, and Mason, the 'plaintiff, in Wyandotte. In October, 1879, one Trabue, a lawyer from Kentucky, called upon Mason at his office in Wyandotte and employed him to do some work for the benefit • of the defendant, and the conversations of Trabue at that time with Mason were testified to by Mason; but the fact that Trabue was an agent of defendant was proved by the depositions of both Trabue and defendant. It is true Mason’s testimony was given before the depositions were read, but the mere order of the testimony is a matter largely within the discretion of the court, (Brown v. Holmes, 13 Kas. 482,) and as the depositions were on file when Mason gave his testimony, and were afterward read in evidence, the court did not commit any error in refusing to rule out Mason’s testimony as to Trabue’s statements. Of course a different question would be presented if those depositions had not been offered in evidence. But where the fact of agency is during a .trial established by the testimony of both the principal and the agent, any question as to a prior ruling admitting in evidence statements of such agent is settled in favor of the correctness of such ruling.

We think also there was sufficient evidence to sustain the verdict of the jury. That Trabue was an agent of the defendant is clear, and also that Trabue as such agent employed Mason to do some work. The only doubt is as to the extent ■of the agency and the extent of the employment; and upon those two questions of fact we think there was sufficient testimony to go to the jury and to sustain their verdict. These being the only two matters complained of, and in them appearing no error, the judgment must be affirmed, and this irrespective of the question whether any of the proceedings ■of the trial court have been properly preserved for review.

All the Justices concurring.