The opinion of the court was delivered by
Horton, C. J.:Counsel for the defendant in error attacks the proceedings filed in this court, and an examination of them conclusively shows that the merits of the case cannot be considered upon the record presented to us.
The papers attached to the petition in error purport to be copies of the case-made, and of certain pleadings and journal entries, and, within M. K. T. Co. v. Palmer, 19 Kas. 471, are not available on review.
Since the brief of the counsel for the defendant in error was filed, the plaintiff in error has transmitted to us the original case-made, but even if we consider this as a part of and as attached to the petition in error, the record is still defective. The case-made does not purport to incorporate therein the pleadings, judgment, or any of the proceedings of the court, except the evidence produced and offered on the trial. Prior to the certificate of the judge signing and settling the case, the record reads as follows:
“The above and foregoing is all the evidence úsed or offered on the trial of this case in the district court by both plaintiff' and defendant, which with copies of the pleadings of the parties, motions, orders and rulings of the court and journal entry of the judgment in the case, constitute the case-made for the supreme court.”
No copies of the pleadings, motions, orders, rulings of the court or judgment were, at the time of the' settling of the case, attached to such case-made, nor have they been attached since then. If we however consider the copies annexed to the transcript as attached to the case, we must do so upon the certificate of the clerk of the district court, and we at once come in conflict with Shumaker v. O’Brien, 19 Kas. 476. The settling and signing of a ease-made is an act of the judge, and a reference in the case to papers, copies of proceedings, etc., to be certified by the clerk of the court and not to be incorporated into the case-made as a part of it, is insufficient. In this cause sixty days were taken to make a case, and the copies of certain papers and proceedings referred to in the original case-made cover less than ten pages, so there seems to be no reasonable excuse for not having these pages annexed to the original case when signed, and certified to by the judge; but if not then copied and ready to be attached to the case, they should have been clearly made a part of the same without our being compelled to take evidence aliunde that the papers separate and detached from the case-made, are intended to belong to it and are the same as therein referred to. (Railroad v. Wagner, 16 Kas. 335; Transportation Co. v. Palmer, supra; Shumaker v. O’Brien, supra.)
The judgment of the district court must be affirmed.
Valentine, J., concurring.