Low v. Wilson

95 P. 1135, 77 Kan. 852, 1908 Kan. LEXIS 357

• Court: Supreme Court of Kansas
• Decided: February 8, 1908
• Docket: No. 15,368
• Status: Published

Opinion

Per Curiam:

The demurrer to the second count of the answer should have been sustained. It stated no facts which constitute a defense, and as the petition stated a cause of action there is no force in the contention that the demurrer should have been carried back to the petition. However, as the answer was abandoned on the trial, and no evidence was given under it, the ruling on the demurrer was not prejudicial.

Plaintiffs are not in a position to claim prejudice' because the court permitted the answer to be amended on the trial and a new defense set up', for the reason that they made no request for a continuance over the term and the court postponed the hearing .until a later day in order to give plaintiffs an opportunity to procure evidence in rebuttal, at which time plaintiffs offered further testimony for that purpose. .

Complaint is made of the admission of certain testimony, but as no objections were offered to the ruling of the court at the time plaintiffs cannot avail themselves of any error in this respect.

The evidence of plaintiffs, in our opinion, was sufficient to support a judgment in their favor, but there was a conflict in the evidence and we are bound by the decision of the court thereon.

The judgment is affirmed.