it. While the testimony introduced would not have been proper under a general denial when objection was made to it for that reason, yet if it was admitted without obadmitted as though the pleadings were sufficient to justify its introduction, it is too late for the plaintiff to make his objection for the first time in a motion for a new trial to the sufficiency of the pleadings. This disposes of the case. We therefore rec

the purpose of lessening the taxes of the city proper, or increasing its revenue, it has been held in some of the states that taxes levied upon such land may be enjoined, but that rule would not apply to the facts injection, and the action tried and evidence this case. On the other hand, it has been generally held in this country that cities have full power given them to impose taxes on agricultural and rural land within their boundaries. Weeks v. City of Milwaukee, supra, Cary v. City of Pekin, supra; Arbegust v. City of Louisville, 2 Bush, 271; Hew-ommend an affirmance. itt's Appeal, 88 Pa. St. 55; Kelly v. City of Pittsburg, 85 Pa. St. 170, Martin v. Dix, 52 Miss. 53; Hill v. City of Kahoka, supra.

We believe the judgment of the court was correct, and recommend that it be affirmed.

PER CURIAM. It is so ordered; all the justices concurring.

FEIDLER v. Motz.

(Supreme Court of Kansas. Nov. 9, 1889.) COUNTER-CLAIM-PLEADING-WAIVER.

The petition sets forth the manner of the indebtedness of the defendant to the plaintiff, and the defendant's answer is a general denial only. At the trial the defendant's evidence tends to establish a counter-claim, and no objection is made to its introduction on the ground that the pleadings do not authorize it, but the action is tried and the

evidence admitted as if the answer were sufficient to allow the evidence to be introduced. Held, an

PER CURIAM. It is so ordered; all the justices concurring.

FULLER V. WELLS, FARGO & Co. (Supreme Court of Kansas. Nov. 9, 1889.) AMERCEMENT OF SHERIFF-LIMITATION.

1. A proceeding to amerce a sheriff under section 472 of the Civil Code, for a penalty on account of the omission of official duty, is barred by failure to prosecute within one year. Subdivision 4, § 18, Civil Code. JOHNSTON J., dissenting.

2. Where a plaintiff is seeking to amerce a sheriff for his neglect or failure in returning an exing, must conform strictly to the judgment renecution, the execution, to sustain such a proceeddered. Fisher v. Franklin, 38 Kan. 251, 16 Pac. Rep.

341.

(Syllabus by the Court.)

Error from district court, Sumner county; ISAAC G. REED, Judge pro tem.

In December, 1885, Wells, Fargo & Co. ob

objection made for the first time to its introduc-tained a judgment against the Merchants'

tion on a motion for a new trial is made too late. (Syllabus by Holt, C.)

Commissioners' decision. Error from district court, Ellis county; S. J. OSBORNE, Judge.

W. P. Montgomery, for plaintiff in error. F. Danforth and D. Rathbone, for defendant in error.

& Drovers' Bank of Caldwell, and also J. S. Danford and W. D. C. Smith. The judgment against the bank was taken for $9,120, and costs, taxed at $96.50, on the 6th day of December; and the judgment against Danford and Smith was taken on the 28th of December for the same amount. There were certain personal and real property, attached in the action, situated in Osage HOLT, C. The plaintiff in error, who was county, in this state; and an order was plaintiff below, is and has been a resident made, at the rendition of the judgments, of Pennsylvania. Visiting this state in 1878, that, if they were not paid in 10 days, the he placed a filing, under the timber culture attached property should be sold, and the law, upon the north-west quarter of section proceeds of the sale applied thereon. On 26, township 17, range 18, Ellis county, and the 22d day of April, 1886, the order of sale left the defendant as his agent in charge of and special execution was issued, directed the land. It was afterwards taken by his to the sheriff of Osage county, (S. H. Fulagent, the defendant, in his own name, at ler;) said Fuller, as sheriff of Osage county, the local land-office, for the purpose, he received the writ, by due course of mail, on says, of preventing it from being "jumped" the 24th day of April, 1886, and, as he conby other parties. The plaintiff in his peti- tends, returned the same by depositing the tion asked judgment for $800, the amount execution in the mail, properly directed and he says defendant received for the improve-stamped, on the 22d day of June, 1886, with ments on the land, etc., which he had sold. the following return thereon: 'Received We are precluded from examining the this order of sale on this 24th day of April, merits of this case under the record, for, 6 o'clock P. M.; and on this 22d day of after comparing the motion for a new trial with the petition in error, we find the only question we can consider is whether the answer of defendant was sufficient to authorize the admission of the evidence introduced. The petition sets forth in detail the relationship of the parties, and the plaintiff's claim against defendant. Defendant's answer was a general denial. At the trial he testified to the expenditure of large sums of money for his principal in payment for the cultivation of the land. At the time this testimony was given no objection to its introduction was made, on the ground that no sufficient allegations had been made in his answer to authorize v.22p.no.17-36

June, 1886, return said order of sale for want of money to pay for printing said order, which has been demanded and refused. S. H. FULLER, Sheriff Osage county, Kan." On or about the 15th day of May, 1886, S. H. Fuller, as sheriff, wrote the following letter to the attorneys of Wells, Fargo & Co.: "Office of S. H. Fuller, sheriff of Osage county, Kansas. Messrs. George, King, and Caldwell, Wellington-Dear Sirs: Yours of the 14th inst. at hand, and contents noted. I must say that your letter is not very satisfactory to me, as I infer from the reading that you think the property is advertised, which is a mistake. Neither do I propose to advertise this property unless

you put me up a bond of indemnity, or suf-party against whom the proceedings in ficient money to pay printing and other amercement are instituted in the case of costs. I hope you will understand that I Wells, Fargo & Company, Plaintiff, v. The cannot find any of the personal property, Merchants' and Drovers' Bank of Caldwell, neither can I learn of its whereabouts. Kansas, and J. S. Danford, and W. D. C. Please answer. Very resp'y yours, S. H. Smith, Defendants, in the district court of FULLER, Sheriff." W. E. Cox, deputy-sher- Sumner county, Kansas. Affiant saith that iff of Sumner county, testified that the exe- he received the special execution in said cution was returned the 28th of July, 1886. above-entitled action upon the 24th day of The distance between Lyndon, where the April, 1886, and at once notified the attorsheriff of Osage county resides, and Wel-neys of the party, for whose benefit the said lington, the county seat of Sumner county, execution was issued, the amount of costs from whence the execution was issued, is of advertising the property mentioned in 167 miles. There is a railroad between the said special execution, and demanded of places, and by ordinary course of mail it said attorneys the amount of said printer's would not take more than two or three fees aforesaid, and said attorneys failed days for a mail to go from Lyndon to Wel- and neglected and refused to furnish said lington. On July 23, 1887, Wells, Fargo & amount of said fee to said sheriff; that Co. filed a motion in the district court of said affiant, believing and expecting that Sumner county to amerce S. H. Fuller, as attorneys would furnish said affiant with sheriff of Osage county, in the sum of $11,- said fee so demanded as aforesaid, and for 039, with 10 per cent. thereon, for failing, no other reason or purpose, held said exeneglecting, and refusing to execute the spe- cution until the 22d day of June, 1886, when cial writ of execution issued the 22d day of he returned the same, as shown by the origApril, 1886, and which he received on the inal execution in the above action; and fur24th day of April, 1886, at 6 o'clock P. M., and ther affiant saith not. S. H. FULLER. Subfor withholding said special execution in scribed and sworn to before me this 5th his hands, without any service, until on or day of September, 1887. [Seal.] T.L. MANabout the 28th day of July, 1886, and for his HALL, Notary Public. Commission expires failing, refusing, and neglecting to return Dec. 9th, 1888." After hearing the evidence said special writ of execution to the clerk of and argument of counsel, the court found the district court of Sumner county until for Wells, Fargo & Co., the plaintiffs, upon said 28th day of July, 1886. The hearing was all the issues raised upon its motion to had upon the motion to amerce, upon the amerce S. H. Fuller, as sheriff of Osage 6th of September, 1887, before ISAAC G. REED, county, to which ruling the defendant, S. Esq., judge pro tem. Wells, Fargo & Co. H. Fuller, objected. Subsequently, the appeared by their attorneys, L. B. & S. E. court rendered a judgment amercing said Wheat, George & King, and Hayden & Hay- S. H. Fuller in the sum of $11,057.45, toden. S. H. Fuller, sheriff of Osage county, gether with 10 per cent. thereon; making appeared by his attorneys, Thomson & an aggregate sum of $12,728.62. Wells, Heizer. Upon the hearing S. H. Fuller, as Fargo & Co. remitted all of said amount sheriff, objected to the introduction of any so found in its favor, except the sum of testimony in support of the motion for the $11,770. S. H. Fuller excepts to the ruling, following reasons: (1) That it appears orders, and judgment, and brings the case from the pretended notice and said motion here. that an action on the pretended claim men- Thomson & Heizer, for plaintiff in error. tioned therein is barred by the statute of L. B. & S. E. Wheat, George & King, and limitation, and that more than one year | Hayden & Hayden, for defendant in error. had passed after the pretended or any cause of action had accrued in favor of the plaintiff against said Fuller, and before the serv-above.) S. H. Fuller, as sheriff of Osage ice of any notice upon said Fuller, or the county, was amerced in the sum of $11,770 making of any motion to amerce him; (2) for neglecting and refusing to execute a spethat there are not facts sufficient set forth cial writ of execution issued to him by the in said pretended notice and motion to en- clerk of the district court of Sumner county title the plaintiff to any relief; (3) that the on the 22d day of April, 1886, which was repretended execution set forth in said pre- turned by him without service on the 28th tended notice and motion is also absolute- day of July of the same year. The proceedly void; (4) that it appears that no judging to amerce was commenced July 25, 1887, ment was ever rendered by said court as is more than a year after the time the sherrecited in said copy of said execution set iff should have returned the execution. Fulforth in said pretended notice and motion;|ler claims that the order of amercement is (5) that no notice was ever served, as is required by law, upon the said S. H. Fuller, sheriff, etc., prior to the making of said motion; (6) that the court has no jurisdiction over the person of the said S. H. Fuller, nor of the subject-matter of said motion; (7) that no motion was made in court prior to the service, or pretended service, of any notice, or any pretended notice, thereof, nor is there any waiver of the same. This was overruled. Upon the hearing the following affidavit was read and submitted: "State of Kansas, county of Osage-ss.: S. H. Fuller, duly sworn, deposes and says that he is the sheriff of Osage county, and the

HORTON, C. J., (after stating the facts as

erroneous, and should be reversed, because the proceeding, at its commencement, was barred by the statute of limitations, and also because the execution or indorsements thereon did not follow the judgment. It is contended that a proceeding to amerce is within the spirit, if not within the letter, of subdivision 4, § 18, Code, which provides that an action for penalty or forfeiture must be brought within one year. On the part of Wells, Fargo & Co., it is claimed that there is not any statutory limitation against a motion to amerce, that section 18 of the Code applies to civil actions only, and that a motion to amerce is not a civil

a set-off is within the spirit and intent of the statute, but not within its letter.

action, but a special proceeding. Technic-| enforce it by a direct action; and therefore ally and strictly, the language of section 18 does not embrace a proceeding to amerce, because it refers to civil actions exclusively; We think the statute of limitations should but its spirit and intent does apply to such apply in such a case as this, and that the a proceeding. An action is defined by sec-courts have the power to withhold, and tion 4 of the Code as an ordinary proceed- should withhold, the exercise of its jurisdicing in a court of justice by which a party tion in summary proceedings whenever an prosecutes another party for the enforce- action for penalty or forfeiture sought to ment or protection of a right, the redress be enforced is barred by the statute. Vanor prevention of a wrong, or the punish-Tassel v. Van Tassel, 31 Barb. 439; Merritt ment of a public offense. The proceeding v. Parks, 6 Humph. 332; Butler v. Winters, to amerce is in the nature of an action to 2 Swan, 91; Prewett v. Hilliard, 11 Humph. redress a wrong. The object of the pro- 425. In this state all amercements are enceeding is to give the judgment creditor sat- tered on the record of the court, and have isfaction or a penalty for the omission of the same force and effect as a judgment. the official duty of a sheriff. In saying that Section 477, Civil Code. In special proceeda motion to amerce is in the nature of an ings which are ancillary, like attachments, action to redress a wrong, we do not inti- temporary injunctions, etc., no statute of mate that special findings are to be allowed limitations is necessary, because such proon the hearing thereof. The motion is to ceedings are subservient to the principal be heard and disposed of as provided by case, and cannot be prosecuted if the main the terms of the statute. Armstrong v. action is barred. Not so with a motion to Grant, 7 Kan. 296, 297. If an ordinary ac-amerce. It is a proceeding prosecuted for tion at law had been brought by Wells, official misconduct or omission. Against Fargo & Co. against Fuller for damages for this conclusion, we are referred to State v. his omission of official duty, it is not, and Crowell, 1 West. Law J. 305. That decision cannot be, denied that the statute of limit- was rendered by the common pleas court ations would apply. It is said in Chick v. of Sandusky, Ohio, in 1843, and is not very Willetts, 2 Kan. 384, that" the statute of lim-high authority. The decision in Chinn v. itations of this state is wholly unlike the Trustees, 32 Ohio St. 236, construing a proEnglish statute, and differs materially from ceeding by mandamus not a civil action, the limitation laws of those states which and therefore not within the statute of limhave adhered to the common-law forms of itations of the Code, is contrary to the deaction and modes of procedure. Those stat-cisions of this court, and therefore cannot utes apply in terms to the form of the action be followed. Judd v. Driver, 1 Kan. 455; at law, and contain no provisions concern-State v. Marston, 6 Kan. 524; State v. Jeffer ing an equitable proceeding. If a party had son Co., 11 Kan. 66. concurrent remedies,-one at law; the oth- As the statute of limitations applies, the er in equity,-courts of equity applied the next question is, which section is applilimitation prescribed for the action at law; cable? Counsel for Fuller claim that the limbut in all other cases they were said to act itation of one year controls. The opposite merely in analogy to the statutes, but not counsel insist that three years or five years is in obedience to them. In this state the case the time. Subdivision 4 of section 18 reads: is entirely different. The distinction be-"Within one year: An action for libel, tween actions at law and suits in equity slander, assault, battery, malicious proseis abolished, and the statutes of limitation cution, or false imprisonment; an action apply equally to both classes of cases. upon a statute for a penalty or forfeiture, They are made to apply to the subject-mat-except where the statute imposing it preter, and not to the form of the action." The scribes a different limitation." The statstatute of limitations is regarded in this ute, in express terms, provides that, when state as a statute of repose. It is designed a sheriff is amerced, the order or judgment for peace and quiet. Sibert v. Wilder, 16 must be entered against him for the debt, Kan. 176. Sheriffs would find little benefit damages, and costs, with 10 per cent. therein the statute of limitations which pro- on. Section 472, Civil Code. It is said in tected them from the consequences of an Bond v. Weber, 17 Kan. 410, that section 472 action after the running of the statute, but of the Code, which provides for the amerceleit them exposed to the more summary ment of sheriffs, "is summary and penal in and severe remedy of a motion for the same its nature." In Fisher v. Franklin, 38 Kan. cause. In Seymour v. Cooper, 26 Kan. 539,253, 16 Pac. Rep. 341, it is said: "The statthe exemption statute was construed to ute under which this motion was made is apply to the personal services or earnings of a penal character, and, like all other of a debtor in attachment or garnishment penal preoeedings, strict compliance with proceedings. The statutes do not any-the requirements of law must be observed where, in express terms, create such an ex-in its enforcement; and when a person deemption; and yet an exemption was de- sires to avail himself of this proceeding he clared, in such a case, because within the cannot complain if he is required to strictly evident spirit and intent of the legislature. conform to the letter of the law; for, when Again, the statute of limitations, in a nar- it is enforced, it works, in many instances, row and a technical sense, applies only to great hardship to the officer, who, while becivil actions commenced by the filing of a pe-ing negligent in doing some duty required tition, but the statute has always been extended to a plea of set-off, on the ground that the spirit and intent of the act embraces an outlawed claim which the party attempts to avail himself of by a set-off, as much as the same claim, when the party attempts to

of him, yet out of that negligence no injury has resulted to others." An action brought to recover damages for the failure of a mortgagee to satisfy a chattel mortgage is an action for a penalty, and barred within one year. Hall v. Hurd, 40 Kan. 374, 19 Pac.

Rep. 802; and, also, Hall v. Hurd, 40 Kan. | thus giving the adverse party ample time 740, 21 Pac. Rep. 585; Joyce v. Means, 41 Kan. 234, 20 Pac. Rep. 853. In our opinion, the motion to amerce comes within the fourth subdivision of said section 18 of the Code, and the statute of limitations of one year controls. Therefore this proceeding was commenced too late.

and opportunity to defend. Id. art. 6. In amercement, the proceeding can be instituted by a mere motion, and heard and decided on two days' notice. If the motion is to amerce an officer of a county other than that from which the execution issues, fifteen days' notice must be given to him. Id. §§ The objection to the form of the special 472, 477. No issue is formed by pleadings, execution need not be specially commented no special findings can be required, and the upon. It appears, however, that the execu- determination of the motion by the court is tion had improperly indorsed thereon the an order, and not a judgment. Armstrong words "without appraisement of lands." v. Grant, 7 Kan. 285. All these things mark The judgment did not authorize the lands it as a special proceeding, and distinguish to be sold without appraisement. It is said it from an action or ordinary proceeding. in Fisher v. Franklin, supra, that, where a The distinction is still further shown in the "plaintiff is seeking to amerce a sheriff he matter of where the two proceedings may must show a valid judgment, and the exe- be brought. The jurisdiction of an action cution must conform strictly to that judg- against the sheriff for failure to properment." If the indorsement upon the back ly execute process sent from another counof the special execution is considered a part ty would be in the county where he resided, of the execution, or in any way connected and not the one to which the process was with it, the execution in this case did not to be returned; but a proceeding to amerce conform strictly to the judgment. The or- the sheriff can only be maintained in the der and judgment of the district court will county from which the execution was isbe reversed, and the case remanded for fur-sued. Reynolds v. Nelson, 40 Kan. 41, 19 ther proceedings in accordance with the views herein expressed.

VALENTINE, J., concurring.

Pac. Rep. 353. The fact that it must be prosecuted in the county which renders the judgment, and whose process the officer has failed to execute, indicates to me that the proceeding is ancillary, rather than indeJOHNSTON, J. I think the judgment should pendent, and special, rather than ordinary. be reversed; but I place my concurrence Instead of bringing a new and independent solely on the second proposition of the action, the motion is made in and as a part syllabus, and the facts of the case which of the action in which the execution issued. bring it within that rule. The remedy of The legislature having so clearly defined amercement is of such a summary and se- what an action is, and having with equal vere character that a party who will avail clearness defined the application of the stathimself of it must strictly observe the re-ute of limitations to actions, I think it canquirements of the statute. The special exe-not be enlarged by construction to include cution and the judgment did not corre- a proceeding in amercement. In order to spond. The judgment required a sale upon bring such proceedings within the operaan appraisement duly made, while the exe- tion of the statute of limitations, the legiscution indicated that the property was to lature of New York deemed it necessary to be sold without appraisement. There was specially extend the ordinary meaning of indorsed upon the execution the words the word "action;" and it enacted, in the "without appraisement;" and under the fourth subdivision of section 414 of the Code, prevailing practice in regard to indorsing that "the word 'action,' contained in this such writs I think the words may fairly be chapter, is to be construed, when it is necconsidered a part of the execution. The re-essary so to do, as including a special procitals in the body of the execution are not ceeding, or any proceeding therein, or in an inconsistent with the indorsement, and, action.' It would seem to be good policy when taken together, the writ cannot be to extend the application of the statute to said to strictly conform to the judgment; special proceedings against officers; but and hence the remedy was not available to that is wholly with the legislature, and it the defendant in error. Fisher v. Franklin, seems to me that the legislature did not in38 Kan. 251, 16 Pac. Rep. 341. I am unable tend to include a proceeding like this, which to agree with the proposition that the stat- it so carefully distinguished from an action. ute of limitations applies to this remedy, which I regard to be a special proceeding. In brief, my view is that the legislature has in terms restricted the application of the statute to actions. Civil Code, § 18. It has divided remedies into two classes, viz., actions and special proceedings, and has clearly defined an action to be an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the re-sets forth the original answer in full, and also that dress or prevention of a wrong, or the punishment of a public offense." Every other remedy is a special proceeding. Id. §§ 3-5. As indicating the legislative view of what an action is, it is provided that it shall be commenced by a petition filed in the district court, and a summons issued thereon, which must be served in a prescribed way;

66

WINTER et al. v. SHUTTER. (Supreme Court of Kansas. Nov. 9, 1889.) ERROR TO JUSTICE'S COURT-PRACTICE.

1. When a party takes a case by petition in error from a judgment of a justice's court to the district court, the bill of exceptions should set out

all the pleadings filed in justice's court.

2. Where the bill of exceptions in such a case

amendments have been allowed thereto, but such amendments are not shown, it is error to reverse a judgment in favor of defendants because a tender was alleged in the original answer.

(Syllabus by Holt, C.)

Commissioners' decision. Error from district court, Greenwood county; A. L. REDDEN, Judge.

In October, 1886, the defendant in error, | 112b of Procedure Civil before Justices proas plaintiff, commenced action in a justice's vides: "In all bills of exception it shall be court against the defendants, asking judg- competent for the party preparing the same ment for the amount of $129.16. The defend- to set out the pleadings, motions, and deants answered by a general denial, an offset, cisions of the justice of the peace thereon, and the tender of $25, and deposited that and the whole of the evidence given, or so amount with the justice of the peace. A much as may be necessary to preserve the trial was had before the justice and a jury, point or points decided on the trial, and the and a verdict rendered in favor of defend- ruling and decisions of the court, and the ants for $22.14. After the verdict was re- exceptions made thereto on the trial." The turned, and by leave of the court, the defend- word "competent," in this section, evidentants amended their bill of particulars to ly means "sufficient." There is no provisconform to the verdict, and demanded a ion in this section for setting out a part of withdrawal of their tender, which was re- the pleadings, as there is concerning the evifused by the court. Plaintiff immediately dence, and it is fairly inferred that the pleadfiled his motion for a new trial, and upon ings should be set forth in full in the tranthe hearing thereof a new trial was grant- script. We think the bill of exceptions, ed. The defendants again demanded a signed by the justice, was insufficient for withdrawal of their tender, to which the this reason, and the case should have been plaintiff objected, and announced that he dismissed by the district court. The reawas willing to accept the sum, and asked sonableness of this rule is illustrated in this that it be paid over to him by the court. case. The decision of the district court The court refused to pay the money to was evidently based upon the plea of tenplaintiff, but did pay it to the defendants der set forth in the transcript. That may Over the plaintiff's objection. Subsequent- have been stricken out when the defendants' ly a trial was had on the bill of particulars answer was amended so as to conform to of plaintiff, and the general denial and offset the verdict of the jury in the first trial. It of defendants, before the justice alone, and is not mentioned as being a part of the he rendered a judgment for defendants for pleadings in the second trial before the $22.14. The plaintiff filed a motion for a new justice. From the imperfect record brought trial. This motion was overruled, and a here, it was shown that that trial was had bill of exceptions, so called, was allowed, upon the bill of particulars of plaintiff, and and the case taken to the district court by the general denial and plea of offset of the petition in error. In the district court judg- defendants. Nothing is said of the plea of ment was rendered for the plaintiff, revers- tender, which was originally filed by the ing the judgment of the justice's court, and defendants. It should be presumed, to upthe cause was held for trial. The defendants hold the judgment of the justice, that the were ordered by the court to deposit with defendants' answer had been amended by the clerk the sum of $25, amount of tender striking out that plea. It was within the in said case, and upon their failing to do so power of the justice's court to allow such the court held them as of contempt of amendment. We call attention, as bearcourt for not complying with said order. ing upon this point, to Baird v. Truitt, 18 Subsequently the defendants deposited the Kan. 120; Reilly v. Ringland, 39 Iowa, 106; amount under protest, when the plaintiff, Reynolds v. West, 32 Ark. 244. We recomhaving received said sum, came into court, mend that the judgment be reversed, and and dismissed the action without prejudice, the district court ordered to dismiss the peover the objection of defendants. They tition in error. filed a motion for a new trial, which was overruled. Complaining of this judgment of the district court, the defendants bring the case here for review.

R. P. Kelley and W. S. Marlin, for plaintiffs in error. T. L. Davis and G. W. C. Shutter, for defendant in error.

PER CURIAM. It is so ordered; all the justices concurring.

NORTON V. HUNTOON. (Supreme Court of Kansas. Nov. 9, 1889.) SECOND APPEAL-REVIEW-REFERENCE. 1. Where a cause has once been reviewed in the supreme court on error, and the judgment of the lower court modified, and the cause remanded. held that, in the subsequent proceedings in said cause, the former decision of this court will not be reviewed, but it is final and conclusive.

2. Where a cause is referred by the district court to a referee to make certain findings, and for an accounting, and no objection is made to such reference by either party, such reference is no ground

of error.

HOLT, C., (after stating the facts as above.) The bill of exceptions allowed by the justice of the peace did not contain all the pleadings, and none of the evidence. We are therefore unable to learn definitely from the transcript what issues were tried in the justice's court at the second trial. The defendants' original answer was evidently set forth in full; but, after the verdict of the jury in their favor, it is stated that it was "amended so as to conform to 3. Where a referee has been duly appointed, the verdict." What that amendment was and a time fixed in which to make his report to the is not shown. It is in the transcript, how-court, and before the expiration of such time, on ever, that the second trial was had before the application of the referee, the time in which to the court without a jury, on the bill of par- make his report is extended, held that, the referee ticulars of plaintiff, and the general denial being an officer of the court, it is not error for the and plea of offset of defendants, when the court, upon a sufficient showing, to extend the time for making such report. court rendered a judgment for the defendants for $22.14. The original pleadings in the justice's court should have been set forth in full in the transcript, with all the amend-trict court, Shawnee county; JOHN W. DAY. ments thereto that were allowed. Section Judge.

(Syllabus by Clogston, C.)
Commissioners' decision.

Error from dis