Barbour County index. [volume] (Medicine Lodge, Kan.) 1880-current, 1893-07-05

Judge Lnere0f, TO dissolve the injnDc
ton, and if errors were still committed
by the court or judge, the defendant
had ample remedy by proceedings here
1t is claimed that the affidavit to the
petition for injunction, was not signed
by the plaintiff or his agent, but by a
stranger TO the record. 1t is true thai
it was not signed by the county attor
ney, but by one Charles w. Pease
whose relation to the case does not ap-
: pear. We do not deem it necessary to
decide whether this was sufficient yer.
lfication of the petition for the purpose
OF granting an injunction, but we do
hold that the order of injunction was
not void because of defective affidavit
1t was, at most, erroneous for the dis
trict judge to issue the injunction, and
the error, if any, could only be correct
ed by a proper proceeding in that action.
The defendant could not treat the order
OF injunction as absolutely void for that
reason. 1t is contended that no con-
tempt was committed because an order
had been made by the board of COM
mlssioners, before the summons was
served, for the purchase of the bridges,
aud that the action of Pierce was mere
ly carrying out the order already made
by the board. There is no substance in
this claim. The order enjoined the de-
PENDANT from paying for any such
bridges with county scrip or warrants,
and this is exactly what the defendant
proceeded to do. We think it clearly
appears that the defendant knowingly
violated the order. While there are
great Irregularities in the proceedings
of the district judge, it was still the
duty of the defendant to obey, and we
are unable to find any defect in the pro-
ceedings so great that we can hold the
injunction order void. The order of
the court, directing the defendant TO
make restitution of the scrip issued in
violation of the order, or to pay the
amount thereof, into the treasury of
Barber county, and assessing a fine of
twenty-five dollars against the defend
ant, is criticised by the defendant as
unauthorized. We are unable to see
anything wrong in the order. 1t ap-
pears to be what the statute requires.
Lastly, it is claimed that the sections
of the statute authorizing injunctions
to be granted and providing punish
ment for the violation thereof, was re-
| pealed by section 9, chapter 10Y, laws of
| 1889. 1t is true that this section pur-
ports to repeal sections 243, pa, 246, PAT
of the code. The title of the act how
ever, and tue sections which are
amended in the body of the act, show
clearly that this was a mistake,
and that sections 643, GA 646 and CAT,
are the ones mentioned in the title, and
in fact amended and intended
TO be repealed by section 8. If
it had really been the intention of the
legislature to repeal these sections, sec
ton 8, in so far as it refers to them,
would be in violation of section Is, arti-
Gle 2, OF the constitution.
| On the whole record, we feel con-
strained to affirm the order of the dis
trict judge.
All the Justices concurring.
Attest: G. j. BROWN,
Clerk supreme court.
MOTION FOR REHEARING, DENIED.
| There is filed on behalf of the appel
liant, an elaborate brief, covering all
the matters considered by the court on
the first hearing. We are satisfied with
| the conclusions before reached, as ex-
pressed in the opinion. 1t is SIREN
uously contended however, by counsel
for appellant, both in the brief and on
oral argument, that it does not appear
that Barber county was damaged to the
amount of $1,73S5S, the face value of
the scrip, issued in violation OF the in
junction, or In any other sum, and that
the district judge erred in ordering
Pierce to make restitution to the coun-
ty, of that sum of money, or of the
scrip, and that the county had an am
pie defense against the scrip in whose
hands soeyer 1t might be, If it was il
legally issued, because such scrip, or as
~ "ONANA w PlOpOAiX ICImCu, luO
county warrant, is not negotiable.
The question counsel seeks to raise is
not presented by the record, as there is
no bill of exceptions containing the eyi-
denee offered on the hearing which we
can consider. The order complained of
was made by the district judge, at
chambers, on the 18th day of July, 1892.
No time was asked or given the defend
ant to prepare bill of exceptions. On
the 18th of July, notice OF appeal
was served, and on the 10th of July,
the bill of exceptions. contained in the
record, was presented to the district
judge, and signed by him.
In the ease CT the State ex. rel. VS.
Burrows, 80 Kas., 10, it was held that
IAN objection to the decision of
judge at chambers should be reduced to
writing, and presented TO the judge for
his alio-2nce, at the conclusion of the
hearing when the DECISION was made,
unless application is made for addi-
tlonal time, which may be given, but
never to exceed ten days. If no time is
asked or given at the conclusion of the
hearing before such Judge, the parties
are concluded, and are not thereafter
entitled to present for allowance, and
have settled aud signed bill of excep-
tions.'
In the Absence of bill of exceptions
containing the tesWmGqy, we cannot
say that the court erred in fxmg the
7alue of the scrip at its face. 1t may
have been presented TO the county
treasures and paid. In various ways it
could happen that the county might
| fail to sec,.ss the hanaGt nf anu aofnnro