
    The St. Louis, Kansas & Arizona Railway Company v. Albert M. Quinn.
    Proceeding under article IX/ch. 23,-Gen. Stat. 1868, as amended by ch. 74, Laws 1870. In the report of the commissioners for condemning the right of way and assessing damages, filed July 2,1876, there was allowed to Quinn and against the Railway Co. $194.35, as damages for 4^5-acres of his land taken by said company, for its right of way and for its use and benefit, in the.S.W. i of sec. 35, T. 17, R. 22, and also for acres of his land so taken in the N.W.-jj of sec. 2, T. 18, R. 22 — all situate in Miami county. From this award Quinn appealed (or attempted to do so) to the district court of said county, and on November 6, 1879, filed his petition setting forth his cause of action against the railway company, and claiming $5,271.25 as his damages. February 4, 1880, the court overruled the defendant’s motion to dismiss the appeal. The Railway Company brings the matter here for review.
    
      Beeson & Balter, for plaintiff in error.
    
      Wm. B. Brayman, for defendant in error.
   Per Curiam:

This case comes up on a motion of the railway company to dismiss an appeal taken from an award of the board of commissioners of Miami county, in condemning the right of way and assessing damages to the owner of land. The plaintiff in error assigns for cause of dismissal of the appeal — first, that the appeal was not taken within the time prescribed by law; second, that the appeal bond was not executed by the appellant as required by law; third, that the appeal bond was not filed within ten days from the filing of the report of the commissioners.

The motion to dismiss was made too late, and the court therefore committed no error in overruling it. The record shows that Quinn attempted to take an appeal on July 25, 1879; that on October 6, 1879, both parties to this proceeding appeared in the district court of Miami county, and stipulated that Quinn was to file a petition in his case in twenty days, and the railway company to have twenty days in which to answer. On November 6 thereafter, Quinn filed his petition, setting forth at length a cause of action against the railway company, and claiming $5,271.25 damages. On January 5, 1880, the company filed its answer, with the consent of the owner of the land. The motion to dismiss was not filed till February 2, 1880. At this date, the court had acquired full jurisdiction. (Shuster v. Finan, 19 Kas. 114-116; Miller v. Bogart, 19 Kas. 117.)

Judgment affirmed.  