Stallard v. Knapp

Opinion of the court by This was an action in replevin brought in the district court of Payne county on the 28th day of February, 1898, by Sylvester Knapp, defendant in error, plaintiff in the court below, against O. W. Annis, sheriff of Payne county, to recover the possession of certain personal property of the aggregate value of $468, alleged to have been unlawfully detained by said O. W. Annis, as sheriff of said county, under and by virtue of a certain execution issued out of the district court of said county. The sheriff filed an answer containing a general denial to the plaintiff's petition, and at the trial F. M. Stallard and Frank Ellis, the plaintiffs in error, being the real parties in interest, were, upon their motion, substituted as defendants to the action in place of the sheriff. The cause was tried by a jury, and after the plaintiff and defendants offered their evidence in support of their respective issues, the court directed the jury to return a verdict for the plaintiff.

On the 14th day of May, 1898, the defendants filed their motion for a new trial, which was heard and overruled by the court on the 20th day of May, 1898. And thereupon the court rendered judgment in favor of the plaintiff and against the defendants for the recovery of the property involved in controversy, and in case the same could not be had, the value thereof in the sum of $485, and costs of the action. To which rulings and judgment of the court the defendants duly excepted, and bring the case here on what purports to be a case-made.

It appears that the case-made is signed by the judge, and dated the 26th day of October, 1898; but, it is not attested by the clerk, nor is the seal of the court attached thereto.

Where a case-made is signed by the trial judge, but is not attested by the clerk of the court with his signature, and the seal of the court is not attached thereto, it is not sufficiently authenticated, as required by section 566 of the Civil Code, to constitute a legal case-made, and the judgment of the court cannot be reviewed here. (German Reform Church etal, v. Abbey, 54 Kan. 766, 39 P. 691.)

The appeal is, therefore, dismissed.

Burford, C. J., having presided in the court below not sitting; all of the other Justices concurring.