
    No. 20,421.
    John Sexson, Appellee, v. A. B. Gladhart, Appellant.
    
    SYLLABUS BY THE COURT.
    Appeal prom Justice op Peace — Motion to Dismiss Appeal — Hearing Postponed — No Journal Entry — Jurisdiction Not Lost. A motion to dismiss an appeal to the district court for want of jurisdiction was heard in May, 1914, oral and documentary evidence being produced. No journal entry of the proceedings, or of any ruling on the motion made at the time, is disclosed. The record does show that at a subsequent term of court held in May, 1915, the court decided the question presented by the motion, held that it had jurisdiction of the appeal, and continued the cause. The parties dispute about what occurred. On one side it is said the motion to dismiss was sustained and the appeal was dismissed in May, 1914, On the other side it is said the motion was sustained, but the ruling was vacated on the same day and leave was given to file briefs. Held, the record is conclusive, and does not sustain the claim that the court was without jurisdiction to rule on the motion in May, 1915.
    Appeal from Wallace district court; Jacob C. Ruppenthal, judge.
    Opinion filed December 9, 1916.
    Affirmed.
    A. D. Gilkeson, of Hays, for the appellant.
    
      W. E. Ward, of Sharon Springs, for the appellee.
   The opinion of the court was delivered by

Burch, J.:

The question presented by this appeal is whether or not the district court took up the case and overruled a motion to dismiss after having sustained the motion and dismissed the case at a previous term.

The case originated before a justice of the peace, and was taken to the district court by appeal. A motion was there made to quash the original service and to dismiss the appeal for want of jurisdiction. The motion was heard on May 19, 1914, oral and documentary evidence being produced. No journal entry of this proceeding or of any ruling on the motion made at that time is abstracted. On May 19, 1915, the court took up the question of jurisdiction presented by the motion to dismiss, found that a general appeal had been taken from the judgment of the justice of the peace, and held that such general appeal gave the district court jurisdiction. On the face of the record, which is conclusive on this court, the district court had not lost whatever jurisdiction it had in May, 1914, and had j urisdiction to make the order which was made at the term occurring a year later.

There is a dispute about what actually occurred. On one side it is said that the motion to dismiss was sustained in May, 1914, and that nothing further was done in the case until the court of its own motion entered the order of May, 1915. On the other side it is said that the motion to dismiss was sustained at the close of the hearing on May 19, 1914, but that on the same day the order of dismissal was vacated and leave was given to brief the question of jurisdiction. At the November, 1914, term, no briefs having been filed, the case was again passed until the term occurring in May, 1915. This explanation is supported by the following entry made by the judge of the district court on the trial docket on the day the motion to dismiss was heard:

“6:30 p. m. Vacate ruling sustained; motion and leave given at plaintiff’s request to brief question -whether appeal waives lack of jurisdiction below.”

The judgment of the district court is affirmed.  