26 Kan. 284 | Kan. | 1881
The opinion of the court was delivered by
The defendant in error sued plaintiff in error before a justice of the peace. The case was tried before a jury. Verdict and judgment were against the defendant. He filed his petition in error in the district court to review
“ 1st. That said Girard had a lawful fence in the northeast portion of the corn field in controversy? Yes.
“2d. That the cattle belong to said Jordan Barrackman? Yes, a portion of them.
“3d. That the said cattle of said Barrackman knocked down said fence in said northeast portion of said field? Yes.
“4th. That the said W. L. Girard sustained damage by said cattle of said Barrackman? Yes.”
A motion for a new trial was duly made, and overruled, and judgment entered upon the verdict in favor of plaintiff. An attempt was made to take the case by appeal to the district court, but that court dismissed the appeal, on the ground that the amount claimed in the bill of particulars did not ex
The case presents one of those annoying and vexatious questions like that in Wilton Town Co. v. Humphrey, 15 Kas. 372, as to how far proceedings before a justice of the peace which are defective in form ought to be sustained on the claim of a fair trial and substantial justice.
It is not contended in this court that the bill of particulars was sufficient, but it is claimed that the parties went to trial as though it were sufficient, and that any defect therein was cured by the special facts found, and that therefore the case comes within the decision in K. P. Rly. Co. v.Yanz, 16 Kas. 584, and the Rld. Co. v. Taylor, 17 Kas. 569. It has been repeatedly held that in an examination of proceedings before a justice of the peace, great allowance should be made on account of his supposed ignorance of legal phraseology and want of familiarity with judicial proceedings,'and that when both parties appear, and it is evident that a fair trial was had and the substantial rights of both parties protected, the judgment will be upheld notwithstanding technical defects and inaccuracies. Upon this principle, counsel for defendant in error contend that' the judgment should be affirmed. Apparently, the bill of particulars was filed under § 4, ch. 105, Comp. Laws of 1879, for it is alleged that defendant was a drover, and that his cattle damaged plaintiff’s crops; but it is sadly deficient in failing to allege that the plaintiff’s crops were adjacent to the road along which defendant’s cattle were passing. Nevertheless, by reason of the charge that defendant was a drover, it conveyed a plain intimation that recovery was sought under said# section, and irrespective of the question of fence; yet from the findings, it would seem as though the case was tried upon the claim that defendant’s cattle had broken through a lawful fence of plaintiff’s, and done the damage. But if that was the ground of recovery, the bill of particulars was equally deficient in failing to allege facts sufficient to constitute a cause of action.' It does not allege that plaintiff’s crops were inclosed by a lawful fence, or by any
To sum it up, the plaintiff’s bill of particulars, prepared by an attorney, fails to state a cause of action either under said § 4 or otherwise. The findings of fact do not clearly and fully, if indeed at all, supply the vital omissions of the bill of particulars. The intimation in the bill of particulars was such as fairly to induce the defendant to believe that the action was under said section, and to lead him to prepare his defense accordingly. After the jury had been impanneled and sworn, the plaintiff attempts to reduce his claim for damages so as to cut off all right of appeal, and then proceeds to seek a recovery not under said section, but upon an entirely different ground. Under those circumstances it is not apparent that the substantial rights of defendant