McCue v. Hope

Supreme Court of Kansas

McCue v. Hope

170 P. 1052, 102 Kan. 390, 1918 Kan. LEXIS 49

CourtSupreme Court of Kansas

DecidedFebruary 9, 1918

DocketNo. 21,159

StatusPublished

This text of 170 P. 1052 (McCue v. Hope) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McCue v. Hope, 170 P. 1052, 102 Kan. 390, 1918 Kan. LEXIS 49 (kan 1918).

Pincite

Opinion

The opinion of the court was delivered by

Mason, J.:

The plaintiff on his appeal complained of the admission of evidence offered by the defendant upon an issue not raised by the answer. Of this complaint it was said in the original opinion that, while the evidence was objected to on other grounds, no objection was made to it as not being within the pleadings, and that it did not appear that the plaintiff suffered [391]*391any substantial, prejudice from the broadening of the issues, no delay having been asked to give opportunity to produce further evidence on his part. In a petition for a rehearing it is said that although the specific objection referred to was not shown in the abstract, it was in fact made. Treating this statement as effecting an amendment in the abstract, we are of the opinion that the admission of the evidence is not a just ground of reversal, for the other reason given — that the defendant suffered no actual prejudice, not being deprived of a full opportunity to meet the defendant’s claims. Both in the plaintiff’s brief and in the petition for a rehearing the trial court is spoken of as having said that the action was one for remaking the contract between the parties. What the court said was that the action was one “to reopen the account and settlement and remake it in accordance with the agreement of the parties.” We interpret “it” as referring to the settlement, not to the contract.

The rulings referred to in the petition for a rehearing have been reexamined and the court- remains of the opinion that no reversible error has been shown.' The grounds upon which a reversal is asked seem to us to involve the merits of the controversy over the facts. We do.,not regard the evidence as justifying this court in overturning the judgment. No special findings were made, and the separate conclusion of the jury as to the different items involvéd is not shown.

The petition for a rehearing is denied.

Free access — add to your briefcase to read the full text and ask questions with AI

The opinion of the court was delivered by

Mason, J.:

The plaintiff on his appeal complained of the admission of evidence offered by the defendant upon an issue not raised by the answer. Of this complaint it was said in the original opinion that, while the evidence was objected to on other grounds, no objection was made to it as not being within the pleadings, and that it did not appear that the plaintiff suffered [391]*391any substantial, prejudice from the broadening of the issues, no delay having been asked to give opportunity to produce further evidence on his part. In a petition for a rehearing it is said that although the specific objection referred to was not shown in the abstract, it was in fact made. Treating this statement as effecting an amendment in the abstract, we are of the opinion that the admission of the evidence is not a just ground of reversal, for the other reason given — that the defendant suffered no actual prejudice, not being deprived of a full opportunity to meet the defendant’s claims. Both in the plaintiff’s brief and in the petition for a rehearing the trial court is spoken of as having said that the action was one for remaking the contract between the parties. What the court said was that the action was one “to reopen the account and settlement and remake it in accordance with the agreement of the parties.” We interpret “it” as referring to the settlement, not to the contract.

The rulings referred to in the petition for a rehearing have been reexamined and the court- remains of the opinion that no reversible error has been shown.' The grounds upon which a reversal is asked seem to us to involve the merits of the controversy over the facts. We do.,not regard the evidence as justifying this court in overturning the judgment. No special findings were made, and the separate conclusion of the jury as to the different items involvéd is not shown.

The petition for a rehearing is denied.

Cite This Page — Counsel Stack

Bluebook (online)

170 P. 1052, 102 Kan. 390, 1918 Kan. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccue-v-hope-kan-1918.