28 Kan. 648 | Kan. | 1882
The opinion of the court was delivered by
At the September term of the district court for 1881, judgment was rendered in this case upon the general verdict and findings of the jury in favor of plaintiff in error. Defendant in error demanded another trial, by notice on the journal, and thereupon the judgment was vacated and the action set for trial at the next term. At the January term following, trial was again had, and a verdict rendered in favor of the defendant. Upon this verdict and the special findings of the jury, judgment was rendered in his favor.
The first errror assigned is the vacation of the judgment „ rendered at the said September term of the court, and the continuation of the cause for a new trial to the subsequent term. It is insisted that the trial had at said September term was the second trial of the cause, and that the court had no power under the provisions of § 599 of the code to grant to the defendant a third trial. It appears from the record that the petition originally filed was defective as a petition for the recovery of real property, and although this defect was abundantly cured by the answer and reply filed in the action, the court upon the trial on said pleadings sustained an objection
The plaintiff, at the conclusion of the evidence, asked the court to instruct the jury, “That the burden of proving the equitable title in the said Joseph Richardson devolved upon him, and failing to prove the same by a preponderance of the testimony, they must find for the plaintiff upon that point.”
As the plaintiff instituted his action for the recovery of the premises upon his legal title, he was bound to prove in the first instance that he held the legal title, and also the value of the rents and profits for which he demanded judgment. Thereupon the defendant was bound to establish such facts as constituted him the equitable owner of the premises, and his right to assert the ownership and possession as against the plaintiff.
The special findings of the jury clearly show that the jury were convinced of the equitable ownership of the defendant, and as the charge of the court did not in any manner direct the jury that the plaintiff was bound to prove other than the allegations of his petition, the refusal of the specific instruction asked for was not material error, or prejudicial to his rights.
It is also urged that there was no evidence introduced to uphold the verdict and special findings of the jury. The evidence is very conflicting, and in many matters flatly contradictory, but a perusal of the record satisfies us that there was sufficient introduced on the part of the defendant to sustain, not only the verdict, but the special findings. It is
The other errors complained of, in view of the special findings of the jury, are unimportant and need not be noticed.
The judgment of the district court will be affirmed.