Benepe v. Wash

38 Kan. 407

• Court: Supreme Court of Kansas
• Decided: January 15, 1888
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

As to merits, this case is kindred to the case of Sanford v. Gates, just decided. In other words, it has no merits. T. E. Wash, the defendant in error, was the plaintiff below, and S. M. Benepe, the plaintiff in error, was the defendant below. Wash sued Benepe for the value of a hog, or rather a sow, worth about $20. The case was tried before the court and a jury, and the verdict and judgment were in favor of Wash, and against Benepe. The verdict was for $20 damages, and the judgment was for that amount and the costs of suit. Seven different assignments of error are made in this court, but not one of them is tenable. No exception was taken to any one of the rulings of the court below. Besides, some of such rulings were discretionary, some of them were wholly immaterial, and none of them was erroneous. It appears, however, that as to some of them the plaintiff in error, defendant below, was not entirely satisfied; for with respect to some of them, the rulings were adverse to the plaintiff in error and made over his objections, upon the admission of testimony. The first, and one of the principal of the rulings complained of, has relation to the testimony of the plaintiff below, T. E. Wash, who was testifying at the time as a witness on the trial; and such ruling, etc., will fully appear from the following quotations from the record:

“Q. Now at first when you [the plaintiff, T. E. Wash] saw this hog in the corral, you simply said, ‘ Doctor, [meaning the defendant S. M. Benepe,] if I have a hog in here, that is the one/ pointing to her? A. Yes, sir.

“Q. Then you went to her-

“Defendant objected to a reexamination on these points. The objection was overruled.

“ Q,. Then after going to her, you told the doctor [Benepe] that you couldn’t be mistaken about her ? A. Yes, sir.”

It will be seen that the plaintiff in error, defendant below, objected to the question; the court then made its ruling upon the objection, and no exception was taken to such ruling. The ruling, however, in this as in all the other cases, was correct. As no exception was taken to the ruling, we cannot now consider the ruling for the purpose of reversal. No error of law occurring during a trial can be considered by the supreme court unless the ruling of the trial court with respect thereto was duly excepted to at the time, and the question again raised by a motion for a new trial.

We think no material error was committed in this case, and certainly no available error was committed, and therefore the judgment of the court below will be affirmed.

All the Justices concurring.