43 Kan. 692 | Kan. | 1890
The opinion of the court was delivered by
The only questions involved in this case are, whether the court below erred or not in refusing to grant to the plaintiffs a continuance as to the defendant Nicholas Dekker, and in afterward dismissing their action without prejudice as to him. It appears that the action was commenced on October 25, 1887, by the plaintiffs James Clark, Daniel B. Clark, Frank L. Clark, and Cyrus E. Clark, partners as James Clark & Company, against Nicholas Dekker and George W. Dekker, alleged to be partners doing business under the firm-name of George W. Dekker & Co. On November 24, 1887, Nicholas Dekker filed a verified answer denying all the allegations of the plaintiffs’ petition, except that the plaintiffs were partners. On January 28, 1888, George W. Dekker filed a verified answer, denying, among
We cannot say that the court below erred in refusing this second application for a continuance. No sufficient diligence was shown on the part of the plaintiffs to procure their evidence. After this application was overruled, the case was called for trial; but the plaintiffs objected to a trial as between them and George W. Dekker, for the reason that, his answer had not been filed ten days before the commencement
It would perhaps be proper to here state that in this state each member of a partnership is liable for the whole of a partnership debt, and each may be sued separately for the whole of the debt; or if two or more or all the members of a partnership are sued together or jointly, each may answer separately and a separate trial may be had as to each when justice or convenience requires it, and a separate judgment may be rendered as to each; and hence the continuance as to George W. Dekker did not require that the case should also be continued as to Nicholas Dekker. We would also here state that district courts should not consider themselves bound by the oral agreements of counsel not made in open court, and this is especially true where the counsel differ as to what the oral agreements in fact were, as in this case; and we might further say that, when an affidavit is filed, stating that certain things occurred in open court, and the record does not in any other manner show such things, and the court decides the questions presented as though such things had not taken place, and the case is afterward brought to the supreme court, the supreme court must also decide such questions as though such things had not in fact taken place. The district court has some discretion in refusing, as well as much discretion in granting continuances; and we cannot say in the present case that the court below abused its discretion in refusing to grant any con-
The judgment of the court below will be affirmed.