Dent v. Simpson

Citations

• 81 Kan. 217
• 105 P. 542
• 1909 Kan. LEXIS 345

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Denial of Right to Have Cause Argued Musi Affirmatively Appear. Parties have the absolute right to have their cause argued by counsel before the decision is rendered, whether it is tried to the court or a jury. But, in order to predicate error upon the refusal of the court to. allow argument, it must appear that counsel have not waived the right by silence or acquiescence. The record should affirmatively show that permission to argue was refused.</p> <p>2. Surveys and Boundaries — Evidence—Public Record — Sur- ' veyor’s Report. The certified record pf a county surveyor’s report of a survey recorded in the office of the register of deeds under the provisions of section 1821 of the Gieneral Statutes of 1901 is admissible in evidence with the same effect as the original.</p> <p>■3. -Evidence — Public Record of Former Survey Made without Due Notice. On appeal from a county surveyor’s report establishing boundary-lines the record of a former survey is admissible in evidence for the purpose of explaining the survey in controversy, and is prima facie evidence, although the record may not show that such former survey was made with notice to all parties in interest.</p> <p>•4. New Trial — Newly Discovered Evidence Held Not Cumulative. On appeal from the report of a county surveyor establishing boundary-lines the surveyor testified that he was unable to find the government corner between the sections ' and that he established the corner about fifty feet distant from the point which the plaintiffs claimed was the true corner, The whole controversy turned upon the location of the government corner, which the plaintiffs sought to prove by circumstantial evidence, no witness testifying where the stone marking the corner actually is or was located. The court .rendered judgment approving the surveyor’s report. In' support of a motion for a new trial the plaintiffs produced the affidavit of a witness who testified that he