Alma Township v. Kast

37 Kan. 433

• Court: Supreme Court of Kansas
• Decided: July 15, 1887
• Status: Published

Opinion

Opinion by

Holt, C.:

Plaintiff in error, plaintiff below, filed the following bill of particulars in a justice’s court; upon a judgment for plaintiff, defendant appealed to the district court, and there demurred to the bill of particulars, which was as follows:

“Alma Township, Wabaunsee County, Kansas, Plaintiff, Y. Math. Kast, Defendant. — Said plaintiff alleges that said defendant is indebted to said plaintiff in the sum of $10.50, for upon having deposited on the alley of block 9, city of Alma, Wabaunsee county, Kansas, a lot of dirt and earth, which he excavated from his cellar at the time of building his store building. Said defendant was requested to remove said obstruction, but refused to do so, whereupon the compláinant, being road overseer of said road district No. 3, removed said obstruction at his costs; for further explanation, see 'Exhibit A;’ that there is due said plaintiff on said work from said defendant $10.50, which he claims.

Road District No. 3.

By G. Zwanziger, Road Overseer.”

exhibit “a.”

May 22. — Team one day...................................... $3 00

May 22. — Team one-half day................................. 1 50

May 23. — Two teams one day................................. 6 00

$10 50

By consent of both parties the title of said action was amended by correcting a mistake in the name of the party plaintiff by striking out “road district No. 3,” and substituting “Alma township, Wabaunsee county, Kansas,” as plaintiff. The court below sustained the demurrer to such bill of particulars. Plaintiff brings the case here for review. We think the judgment of the court below is correct. The bill of particulars is awkwardly drawn; if it contained a cause of action we would disregard all omissions therein, but it does not state a cause of action against defendant in favor of plaintiff, even crudely. There is no allegation that said city of Alma is in road district No. 3, or that it is within Alma township. It alleges that the overseer of road district No. 3 removed an obstruction from the alley of block nine in the city of Alma, at his own cost, not at the cost of road district No. 3, or the township of Alma. Of course if the city of Alma was not in road district No. 3, or if it was not in Alma township, Wabaunsee county, Kansas, or if Zwanziger volunteered to pay for the removal of said obstruction, the plaintiff herein could not recover as against the defendant.

The plaintiff in error has filed a brief in which it argues an entirely different cause of action from that set forth in its pleadings. We have felt bound simply to pass upon the record as presented to us, without attempting to decide upon the question presented in its brief.

We recommend that the judgment of the court below be affirmed.

By the Court: It is so ordered.

All the Justices concurring.