Mo. River, Fort Scott & Gulp Rld. v. Wilson

10 Kan. 105

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

Opinion

The opinion of the court was delivered by

Valentine, J.:

The record of this case presents only two-exceptions taken to. the rulings of the court below: one by the plaintiffs, and the other by the defendants. The exception taken by the defendants (plaintiffs in error,) was an exception to the decision of the court on overruling their motion for a new trial. A motion for a new trial was made on the following grounds, to-wit: words were inserted at the instance of thé defend-an£Sj an(j against the objections of the plaintiffs, to-wit: “The foregoing is all the evidence introduced on the trial of this action.” These words show that all the evidence introduced on the trial was inserted in the “ case made.” The court allowed them to be inserted, and the plaintiffs who were present by counsel duly excepted thereto at the time. We do not think the court erred in this. If the plaintiffs had suggested - any doubts as to whether the new matter inserted was true or not the court would undoubtedly at the request of the plaintiffs have extended the time for making the case. (Civil code, § 549.) And the court would also undoubtedly have given the plaintiffs the privilege of suggesting further amendments to the evidence, or to any part of the case made, if the plaintiffs had so desired it. These provisions, as well as all other provisions of the code, should be construed liberally so as to promote justice. (Code, § 2.) Having now decided the question whether these words were rightfully inserted or not we again come to the question whether the evidence sustains the verdict. The petition of the plaintiffs below sets forth a written instrument, a contract, as the foundation for their cause of action. The plaintiffs in error claim that this written instrument was not proved on the trial, and for this reason alone it is claimed that the verdict is not sustained by sufficient evidence. For the 1 ft . . 1 sake oí the argument we shall assume that the written instrument was not proved. The question then arises, was it necessary to prove it? The petition set forth this written instrument in full, and alleged its due execution., The defendants answered to this petition on the 2d of December 1870, the last day on which they had a right to answer, by simply filing a general denial.' This answer was not verified in accordance with § 108 of the code, nor was. there any affidavit filed with the answer in ac ordance with §112 of the code stating the substance of the facts contained in the answer. In fact the answer was ■ not verified in any form or manner, and therefore the execution of said Avritten instrument was not put in issue, and there Avas no necessity for proving it. (See §§ 108,128, of the code; Reed v. Arnold, ante, p. 102, and cases there cited.) On the 4th of April 1871, more than four months after the answer had been filed, an officer of the railroad company made an affidavit stating “that he verily believes that said defendant [the railroad company] never executed the written instrument.” But there is nothing to show that this affidavit was ever filed in the case, or even filed at all; and there is nothing to show that the court ever authorized it to be filed. There is not even anything in the whole case that tends to show that this affidavit Avas intended as a verification of the answer of the defendants. There is nothing in fact to show what it Avas intended for. It must therefore be treated as an unauthorized paper, put into the case Avithout AArarrant. That the court has ample authority to permit a pleading AAdiich has been filed without a verification to be aftemards verified, we suppose can scarcely admit of a doubt. But that a party can Amrify such a pleading after the full time for filing it has elapsed, unless he first obtain the permission of the court, we suppose no one aauII claim. The verification of such a pleading is a very, important and material amendment to the pleading. Without such verification a pleading attempting £0 pU£ -[n issue the execution of a written instrument would be a nullity; Avith such verification the pleading would be valid, and AAmuld throw the burden of proving the written instrument upon the other party. If a party could verify his pleading whenever he choose, and without notice to the other party, he Avould probably AAmt until the case Avas called for trial before he would verify his pleading, and would then put in the verification Avithout notice to the other party. Such practice is contrary alike to reason and to authority. The judgment of the court beloAv is affirmed.

“First, Because the attorney for the defendant was accidentally misled as to the time of the commencement of the April Term of this [the district] court, and was surprised that the same commenced on Monday April 1st instead of Wednesday April 3d (1872,) which he supposed to be the correct day as appears by his affidavit herewith filed.

“Second, Because the verdict is not sustained by sufficient evidence, and is contrary to law.”

„ „ amendments.

2. "Written instruments; ecution.

3. Amendments of couilleaTe

All the Justices concurring.

4 papers filed without leave. The plaintiffs in error have now abandoned the question raised by the first ground of their motion for a new trial; but they still insist that a new trial should have been sustained on the second ground. The only question then in this connection is, whether the verdict is sustained by sufficient evidence. For the only ground upon which it is claimed that the verdict is contrary to law is th^t it is contrary to the evidence. It therefore becomes necessary that we should' examine the evidence. But before we can properly do so, it becomes necessary that we should examine the exception of the plaintiffs below (defendants in error,) for if their exception should be sustained we could not then know whether we had all the evidence or not. The evidence is preserved by what is termed “a case made for the supreme court.” (Civil code, §§546 to 549, Gen. Stat., 737; ch. 86, Laws of 1870, page 169; ch. 114, Laws of 1871, page 274.) The case so made was properly served upon the plaintiffs, as provided in § 1, ch. 114, Laws of 1871. But when it was served it did not contain anything that showed that it contained all the-evidence introduced on the trial. When the case was settled and signed by the court, as provided by said § 1, the following

[A motion for a rehearing in this case was made, and upon, full argument was denied 3>y the court.]