Luke v. Johnnycake

9 Kan. 511

• Court: Supreme Court of Kansas
• Decided: January 15, 1872
• Status: Published

Opinion

'The opinion of the court was delivered by

Kingman, C. J.:

The answer and reply were filed out of time, and without leave, or consent. On motion of plaintiff .they were stricken from the files; but with leave of the ■court, on showing made, were refiled, and the cause was tried •on the issues so made up. Whether the order was right or wrong, unless defendants suffered some injury thereby they •cannot claim a reversal of the case on' that ground, as they had the benefit of their answer. But it is urged that by that ■action they were forced into trial, at that term, without preparation. Without such order it is said the case would not have stood for trial, as the issues were not made up ten •days before the commencement of the term. . Let us see how this is: Had an answer been filed in proper time the issues would have been made up in time for trial at the June Term. An answer filed out of time, and without leave, is no answer, .and requires no notice. So that when the court met, the •defendants, were in default, and the case was regularly for hearing at that term. Had the defendants proceeded regularly, and obtained leave to file their answer, it ought to have -been on terms that the delay should not work a continuance. It is not intended that such terms would have necessarily been imposed; but that they would, be proper terms, where no cause was shown for delay.

II. During the term, the reply was filed. If it was a waiver of the irregularity in the filing of the ■ answer, (and we are inclined to hold that it was,) it was at least saying nothing more than .this, that plaintiffs would not insist that there was no answer, but would recognize it as though filed in time. The reply was filed out of time, and defendants could have it struck from the files; but then they would be in default, for they would remove the instrument that gave them a standing in court. .The waiver, at most, was, that the answer would be considered as filed in time if the defendants would consider the reply as filed in time; and on that understanding the issues were made up. So that the case stood for trial at the. June Term. If these views are correct, then the court erred in. striking the pleadings from the file; but as they were refiled, there was no prejudice, for the-case stood for trial at that term.

III. The next objection is that certain questions were asked that were leading in their character. The objection to these questions was general. It is asking too much of a court to analyze each question, as it is asked, to see if it is open to any possible objection. It is the duty of the counsel to point out whether the objection is one to the form of the question, as distinguished from the relevancy, or materiality, of the evidence sought to be elicited. And when the objection is to the form only, it is a matter resting so much in the sound discretion of the court, whether such a course of examination will be allowed, that it will be an exceptional case where this court will reverse a case for that cause only. 1 Greenl. Ev., § 435, and notes. In this case it is sufficient that no objection was made that the questions were leading. ■ Had that objection been made, the party could have so framed his question as to have obviated the objection.

IV. There was no state of facts presented that authorized the plaintiff in error, Luke, to prove damages in consequence of a litigation to the title to the land. Nor was there any error in refusing to permit Luke to prove what was due from Stephens to Luke. The averment in the answer was that Johnnycake took the contract between Luke and Stevens in full payment of onemf the notes. If that was true, that was an end of the matter. . If, as claimed by plaintiff, the contract was only taken for accommodation, it was immaterial how much was owing from Stevens to Luke. The evident?© showed that it was taken as payment in full, or that it was only taken by Johnny cake’s agent to apply what was paid on it to Luke’s notes. In the latter view of the case, it was not relevant to prove what was due. The only question was, what was paid?" In the former view it was entirely immaterial how much was due. The conflicting testimony was for the jury.

V. The instructions submitted the issues fairly to the jury. If the modification made by the court to the fourth instruction asked, by the defendants is' open to the objection made by plaintiffs in error, then the answer is, that the finding of the jury, that Luke knew what he was paying for the land when he bought it of the agent of Johnnycake, and that the deed and notes were not misread to Luke, shows that plaintiff in error suffered no loss by reason of the instruction. "We do not decide however that the modification was wrong.

• VI. The amended petition was upon two notes, both due when the amended petition was filed. The court directed the jury, if they found for plaintiff, to find what amount was due on each note separately. The jury returned their verdict for one amount, evidently the sum of both notes. The court below refused to set aside the verdict for this cause, and the counsel for plaintiffs in error fail to show this court how they can be injured by this disregard of the directions of the court by the jury. It is true, the jury should have followed the direction of the court in this respect; but as no injury followed their error, there ought to be no reversal on account of it.

VII. It is insisted that the verdict is against the weight .of the evidence. This court, as has been often decided, is not in as good a situation to form an opinion as the court below on that question; and when there is evidence to support the verdict, and the court which tried the case has refused to set aside the verdict, this court will not reverse the judgment because it seems from the record to be against the weight of evidence. But as counsel, notwithstanding this well-known rule, have pressed this point, it is deemed proper to state the facts. The controversy Avas, Avhether the price paid for the land Avas $12 or $15 per acre. The plaintiffs in error averring that the agreed price was $12 per acre, and that the notes, mortgage, and deed had been drawn showing-sums amounting to $15 per acre, and that they were fraudulently so drawn, and plaintiffs in error, Avho could not read, were induced to receive.the deed and execute the notes and mortgage by the fraudulent conduct of the defendant in error, or his agent. The evidence on this point is this: The deed, mortgage, and notes were prima fade evidence as to the sums for which they Avere executed. The person who drew them up testifies that they Avere drawn according to the terms of purchase. The defendant in error testifies that the price agreed was $15 per acre. Mr. Todd, who as an attorney had had something to do with the tie contract between Luke and Stevens, testifies that he had often had conversations Avith Luke about the purchase of the land, and Luke stated that he had paid $800, and Avas to pay $1,600 more, and that it was a bargain. TAventy-four hundred dollars is just $15 per acre for the land. Here then is the testimony of three men, and the deed, notes, and mortgage, all directly and positively testifying one way. On the other hand, Luke, and two Avitnesses, testify that the price Avas but $12 per acre. One other fact: Johnnycake had given his deposition in the case, and in that deposition had testified that the -land Avas sold for $14 per acre, and it is insisted that this apparent contradiction destroyed the value of his testimony. It was certainly calculated to lessen the confidence of the jury in his statement, if unexplained; but it Avould not destroy it. The jury and the court heard this testimony, and gave credence to the Avitnesses for the defendant in error. We cannot say they were Avrong. On the contrary, it seems to us that the likelihood is that they were right, looking only to the record. The judgment must be affirmed.

All the Justices concurring.