given in this case. It has been examined and weighed by the jury. We are unable to see any ground upon which we could reverse the judgment. It will therefore be affirmed.

(All the justices concurring.)

Burlington, K. & S. W. R. Co. v. GRIMES.

(Supreme Court of Kansas. January 7, 1888.)

1. REPORT AND CASE MADE-FAILURE TO SHOW THAT CASE CONTAINS ALL THE EviDENCE-PROVINCE OF JUDGE.

It is the province of the judge of the court, and not that of the official stenographer, to settle and determine whether a case made for the supreme court contains all the evidence or not, and, if it be desired that it shall be shown that the case contains all the evidence a statement to that effect should be inserted in the case itself, and not necessarily in the certificate of either the judge or the stenographer; but an entire failure to show that the case contains all the evidence is not a ground for a dismissal of the petition in error and the case from the supreme court.

2. APPEAL-REVIEW-OBJECTIONS TO EVIDENCE-HARMLESS ERROR.

Where irrelevant and immaterial evidence is introduced on the trial, but it appears that the adverse party's rights were not prejudiced thereby, held not material

error.

(Syllabus by the Court.)

Error to district court, Phillips county; LOUIS K. PRATT, Judge.

Action by Annie Grimes against the Burlington, Kansas & Southwestern Railroad Company, for damages resulting from the construction of defendant's road through plaintiff's land. There was a trial by jury, resulting in a verdict and judgment for the plaintiff. The defendant brings error.

1 J. W. Deweese, Pratt & Lewis, and W. W. Guthrie, for plaintiff in error. George W. Stinson and Webb McNall, for defendant in error.

VALENTINE, J. A motion has been made in this case to dismiss the petition in error and case made from this court, for various reasons; but we do not think that any of the reasons given are sufficient, and hence the motion must be overruled. Among the reasons given is one that the certificate of the judge does not show that the case made contains all the evidence. It is not necessary in any case that the certificate of the judge should so show; but, if it be desired that it shall be shown to the supreme court that all the evidence is contained in the case made, a statement to that effect should be inserted in the case itself. It is not shown in this case that the case made contains all the evidence, but the failure to make such a showing is not a ground for dismissal. We find a certificate of the official stenographer appended to the evidence contained in the case "that the foregoing is a true and correct transcript of all the evidence," etc., but such a certificate is not sufficient. It is the province of the judge of the court, and not that of the stenographer, to settle and determine whether the case made contains all the evidence or not, and to settle and determine the identity of all the proceedings, and the truthfulness of all the statements, contained in the case made for the supreme court.

This proceeding was an appeal to the district court by Annie Grimes from an award of damages made by commissioners in certain condemnation proceedings. The damages claimed are such as are alleged to have resulted by reason of the Burlington, Kansas & Southwestern Railroad Company's locating its railroad, and appropriating a right of way, through the land of the said Annie Grimes. This appropriation was accomplished on June 29, 1885. The trial with respect to damages was had from June 1 to 3, 1886, before the court and a jury, and the jury found damages in favor of Mrs. Grimes as follows:

Upon the verdict and findings of the jury, the court rendered judgment in favor of Mrs. Grimes for costs, and awarded her damages to the amount of $627.58. Why the court did not award her the full amount of the damages which the jury found that she had sustained is not shown. The court ordered this amount to be paid into the county treasury. If the railroad company has already paid into the county treasury $170, and if that amount still remains there, the company will be required to pay only $457.58 more, in order to make the entire amount of $627.58.

Some evidence was introduced that was irrelevant and immaterial, but we do not think that the defendant's rights were prejudiced thereby. As to some of this evidence, the court instructed the jury to disregard it, and, from their special findings, they must have disregarded the whole of it. The aggregate amount of the damages specially found by the jury is just equal to the entire amount of damages found by them in their general verdict; hence no unwarranted damages were allowed. We think no material error was committed. The judgment of the court below will be affirmed. (All the justices concurring.)

BURLINGTON, K. & S. W. RY. Co. v. BILLINGS et al.

(Supreme Court of Kansas. January 7, 1888.)

EMINENT DOMAIN-PROCEDURE-PLEADINGS AMENDMENT ON TRIAL.

In an appeal from the assessment of damages of a right of way condemned for railroad purposes, a petition was filed when the appeal was perfected. Upon the trial, after the introduction of a part of the evidence, objection was sustained to the proof of title; thereupon the action was revived in the name of the surviving husband and children and the petition amended accordingly. The railroad company then filed its answer, and the trial was proceeded with. Held, that the cases of Atchison v. Twine, 9 Kan. 350, and Railroad Co. v. Andrews, 34 Kan. 563, 9 Pac. Rep. 213, have no application; and further held, that the trial court had ample power to allow the amendments; and, as no sufficient showing was made for a continuance to obtain evidence, or for any other reason, there was no error in requiring the trial to proceed after the answer to the amended petition had been filed.

(Syllabus by the Court.)

Error to district court, Phillips county; LOUIS K. PRATT, Judge.

J. W. Deweese, Pratt & Lewis, and W. W. Guthrie, for plaintiff in error. Geo. W. Stinson, for defendant in error.

HORTON, C. J. This was an appeal from the assessment of damages of a certain strip of land in Phillips county, which was condemned for railroad purposes. The commissioners assessed the total damages of the owners at $184. They appealed to the district court, and filed a petition setting forth at length their cause of action. The case was tried in the district court, before a jury, and the damages were assessed at $783.49. The railroad company complains and brings the case here.

After the introduction of a portion of the evidence on the part of the owners of the land, objection was sustained to the proof of title. Thereupon the plaintiffs asked and obtained leave to amend their petition by setting forth the death of Cora L. Johnson, and the revival of the action in the name of her surviving husband and children. The railroad company objected to the amend

ments, and also asked for the statutory time in which to plead to the amended petition. The court refused to grant this time, to which the company excepted. This is the first complaint.

It appears from the record that, after evidence had been introduced tending to show that Cora L. Johnson had died subsequently to the condemnation of the right of way by the railroad company, the company insisted that the petition should show the names of the heirs of Cora L. Johnson, so that the real parties in interest in the case should be before the court. After the pleadings were amended to conform to the suggestion of the railroad company, and in accordance with the leave and order of the court, the railroad company filed its answer, and the case proceeded to trial. After the amended pleadings were filed, no application was made by the railroad company for a continuance, nor was any affidavit at any time presented showing any necessity for any continuance to obtain evidence, or for any other reason. The court had ample power to allow the amendments. After the petition was amended, an answer was filed. The cases of Atchison v. Twine, 9 Kan. 350, and Railroad Co. v. Andrews, 34 Kan. 563, 9 Pac. Rep. 213, therefore, are not applicable. In those cases the petitions were not amended, and there were no allegations therein of new parties.

It appears from the general verdict that the jury assessed the damages of plaintiffs at the sum of $783.49. In their special findings of fact they stated the damages as follows: Actual value of 6.93 acres of land taken for right of way, without reference to any damage to the remainder of the farm, $107.41; the amount of real and actual damages to the part of the farm north of the right of way, $325; the real and actual damages to the part of the farm south of the right of way, $287; hence there is an excess of $64.08 in the general verdict, over the aggregate damages in the special findings. As the special findings must control the general verdict, the judgment rendered must be modified accordingly.

Exceptions were taken to the introduction of evidence concerning damages to the crops upon the farm from which the right of way was taken. It was the duty of the commissioners assessing the damages for the right of way to determine the value of the crops, etc., and in view of the modification of the judgment to conform to the special findings, we do not perceive any material error as to this evidence. It is doubtful, under the special findings, whether any damages were allowed by the jury for injury to the crops and pasture.

In instructing the jury, the trial court charged that the plaintiffs, after the right of way was taken, might use the strip to the same extent as any other citizen. This is true, but the court did not go far enough. But this error is not material, because the court expressly charged the jury that the fee in the land taken in condemnation proceedings, after the taking, remained in the plaintiffs.

There are several other alleged errors, but after an examination of all of them, we see nothing in them prejudicial to the interests of the railroad company.

As to the payment into the county treasury of the amount of the judgment that the plaintiffs are to recover, see Railroad Co. v. Grimes, just decided, 37 Kan., ante, 472.

The cause will be remanded, with direction to the district court to remit from the general verdict $64.08, and to enter judgment in favor of the plaintiffs against the railroad company for $719.41.

(All the justices concurring.)

SATTERLEE et al. v. GRubb.

(Supreme Court of Kansas. January 7, 1888.)

JUDGMENT-AFTER SERVICE BY PUBLICATION-Opening anD VACATING PROCEDURE. Parties making application to open a judgment and be let in to defend, under the provisions of section 77 of the Civil Code, in cases wherein the judgment has been rendered without other service than by publication in a newspaper, must give notice of the application, file a full answer, offer to pay all costs, if required, and file an affidavit that they had no actual notice of the pendency of the action in time to attend court, and make a defense, all within three years after the rendition of such judgment. The notice served should state that the application would be heard at a time stated, to be within the three years, or as soon thereafter as it could be heard by the court. All matters and things required to be done, by the terms of the statute, by the parties who make such an application, must be done and performed within the three years.

(Syllabus by Simpson, C.)

Commissioners' decision. MARTIN, Judge.

Error to district court, Nemaha county; DAVID

The questions involved in this case arise out of the following state of facts: The record shows that on December 20, A. D. 1859, Joseph Grubb sold and assigned, for value received, to Robert C. Satterlee a certificate of location and the warrant and land therein described, which was duly recorded January 21, A. D. 1860. The land mentioned is described as follows, to-wit: "The northwest quarter of section twelve, (12,) township five, (5,) range fourteen, (14,) now situated and lying in Nemaha county, Kansas." The record also shows that on January 30, A. D. 1860, Joseph Grubb granted, bargained, sold, and quitclaimed, by deed duly executed, acknowledged, and delivered, to Robert C. Satterlee, for a valuable consideration mentioned in said deed, the lands and tenements above described. Said deed was filed for record March 4, A. D. 1860, and duly recorded in Book A, page 479, in the office of the register of deeds of Nemaha county, Kansas. This title of record remained vested in the name of Robert C. Satterlee, and was not disturbed in any way until 1881. Robert C. Satterlee died in Leavenworth in 1861. Joseph Grubb, by reason of some pretended claim of ownership in said premises, always paid the taxes on said land, and no tax title or lien for taxes is outstanding against the premises. April 2, A. D. 1881, Joseph Grubb, as plaintiff, filed his petition and exhibits in the district court of Nemaha county, Kansas, against these plaintiffs in error, and a large number of other defendants, to quiet title to the premises above described, as against these plaintiffs in error, and also to quiet title to some other tracts of land with which these plaintiffs in error have nothing to do, and also praying the court to set aside these conveyances by Joseph Grubb to Robert C. Satterlee, because they were alleged to be fraudulent, forged, and void. Personal service could not be made on these plaintiffs in error, and summons was served by publication thereof in a newspaper. October 17, A. D. 1881, said suit to quiet title came on to be heard in the Nemaha district court, and Joseph Grubb, as plaintiff, obtained his decree quieting title to said premises, and a further judgment that the conveyances from Joseph Grubb to Robert C. Satterlee were false, forged, and fraudulent, and the same were annulled and set aside, these plaintiffs in error being in default. October 16, A. D. 1884, these plaintiffs in error entered their appearance to said suit, and instituted proceedings to open said judgment and set it aside, and permit these plaintiffs in error, as defendants below, to be let in to defend. This application or motion was finally disposed of on October 24, A. D. 1885, and the application of plaintiffs in error to open said judgment and be allowed to defend the case was denied and overruled by the court. It is of this order, judgment, and ruling of the court that plaintiffs in error complain, and now bring the case to this court for review.

W. C. Buchanan and Frank G. White, for plaintiff in error. Conwell & Wells, for defendant in error.

SIMPSON, C., (after stating the facts as above.) The judgment sought to be opened by virtue of the provisions of section 77 of the Code, was rendered on the seventeenth day of October, 1881. It was rendered on no other service than by a notice of publication in a newspaper. The three years within which proceedings to vacate are limited expired on the seventeenth day of October, 1884. On the sixteenth day of October in that year, the defendants in the action filed a motion, signed by their attorneys, in the clerk's office, to open the judgment, and be allowed to defend the action, assigning various causes therefor, and among them are that the only service made upon the defendants was by publication in a newspaper; that they had no actual notice of the pendency of the suit in time to appear and make a defense. The filing of this motion was all that was done by the defendants within three years from and after the rendition of the judgment. A notice was served on the plaintiff, Joseph Grubb, at Greencastle, in the state of Indiana, on the tenth day of November, 1884, by registered letter, containing a true copy of the motion filed, and notifying him that said motion would be called for hearing upon the first day of the ensuing term of the district of Nemaha county, or as soon thereafter as the case could be heard. On the sixteenth day of April, 1885, an affidavit of Eliza Satterlee was filed, for herself and the unknown heirs of Robert Satterlee, reciting that the judgment rendered against herself and her children on the seventeenth day of October, 1881, was upon no other service than by publication in a newspaper; that during the pendency of this suit neither she nor the children of Robert Satterlee had actual notice thereof, in time to appear in court and make their defense, and in fact had no notice of it until September, 1884. On the twenty-sixth day of May, 1885, the defendants filed their answer to the original action, but the record does not disclose why the answer was not sooner filed, or that, when it was, it was so filed by leave of the court, or in pursuance of some previous arrangement among counsel, or by some order of the court.

Adopting the language of Judge BREWER in Albright v. Warkentin, 31 Kan. 442, 2 Pac. Rep. 614, we think that, when the non-resident defendant seeks to open a judgment and be let in to defend, under the provisions of section 77 of the Code, three things are imperatively required by the express terms of the section: First, that the applicant give notice; second, that he file a full answer, and, if required by the court, pay all costs, that is, in his answer proffer to pay all costs, if the court so require; and, third, that he make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense. We think that the service of the notice, the filing of the answer with a proffer to pay costs, if required, and the filing of the aflidavit of the want of actual notice of the pendency of the action in time, should each and all be done and performed within three years after the date of the judgment, in order to comply with the requirements of that section. The notice should fix a time for the hearing of the application within the three years. It may be that there will be no term of the court in session at that time, and because of that the usual declaration in notices of this character ought to be added, "or as soon thereafter as the same can be heard." This ruling requires that the parties who seek to open up a judgment, and be let in to defend, must perform every act required of them by the terms of the statute, within the three years. As to matters over which they have no control, such as terms of court that are fixed by law, or no term being held by reason of the absence or sickness of the judge, or for other reasons, they are not to be held accountable; but as to all matters that require some affirmative action on their part, they must fully perform within the three years.