Albinson v. Roberts

The opinion of the court was delivered by

Defendant in error obtained judgment before a justice of the peace against the plaintiffs in error, which judgment was reversed on petition in error by the district court. The case was there retained for trial, and subsequently judgment again rendered in favor of the defendant in error. To reverse this second judgment this proceeding in error is instituted. The first ground of error is, the overruling by the district court of the motion to dismiss for want of a petition. The civil code (Gen. Stat., 742, §566,) provides that a case reversed shall be retained for trial and final judgment “as in cases of appeal.” Now, counsel claims that by the law as it stood at the time of the enactment of the code, under the decision of this court in Tarleston v. Brily, 3 Kas., 433, pleadings were required in cases of appeal, and hence argues that pleadings were also essential in cases of error. Counsel has overlooked the fact that in 1867, and subsequent to the decision in Tarleston v. Brily, the legislature expressly declared that no pleadings should be necessary in appeal cases where the amount in controversy was less than one hundred dollars. (Laws 1867, p. 78, §9.) The amount in controversy *164here is less than one hundred dollars. Plence by the counsel’s own argument no pleadings were essential in this case, and the court did not err in overruling the motion to dismiss for want of a petition. "We may say that independent of the line of argument pursued by counsel, and appropriated by us, we think the court did not err in overruling the motion to dismiss for want of a petition.

It is also objected that the record does not show any waiver of a jury, and that therefore a trial by the court was erroneous. The action was on a promissory note. No denial under oath was filed. The defendants were in default. They did not demand a jury. The plaintiff makes no objection to the record. We see no error.

The judgment will be affirmed.