14 Kan. 398 | Kan. | 1875
The opinion of the court was delivered by
“It is agreed and stipulated by and between said parties, that said case shall be continued until the next term. In consideration of said continuance the defendant George J. Clark agrees to withdraw his answer from the files, and file a general denial only, and not to place or ask to be placed on file any further answer; and also agrees that in case of sale*403 of the property described herein, that the plaintiff shall have the right to remain in said premises until the 1st of March 1874, by paying $20 per month after such sale.”
This stipulation was signed, “Wm. H. Spencer, George J. Clark, Antoinette E. Clark.” Marston’s attorney indorsed the following upon said agreement: “ I agree that this cause shall be continued till December Term 1873,” which was signed, “C. W. Blair, Attorney for Defendant Marston.” The ease was thereupon continued to the December Term 1873, and the terms of the stipulation complied with as to withdrawing answer and filing only a general denial. On December 17th 1873, the defendants George' J. and Antoinette E. Clark, filed a joint and Several motion for leave to file separate, amended and supplemental answers, setting up usury and a tender to the plaintiff of the amount due after deducting the usurious payments. The tender had been made December 16th, and since the filing of the then existing answer.- The motion was overruled, and the filing of supplemental answer refused by the court. On the next day, December 18th, defendant Marston filed a motion for leave to file a similar supplemental answer, which was also denied. On December *29th, Geo. J. Clark filed another motion for leave to file supplemental answer, which was also denied, the answer setting up the tender only. Also, on said December 29th, defendants Clark and Clark filed a motion to strike from the files the agreement above quoted, which was also overruled.
The principal question in this case is on the refusal of the court to permit the filing of any new pleadings. It is insisted that the stipulation is void because of illegality of consideration, viz., an abandonment of a plea of usury, and an agreement not to make Such plea thereafter, and that therefore the case is to be treated as though no such stipulation was in it; also, that upon the happening of any new matter, amounting to a substantial defense, since the filing of the existing answer, it is a right of the defendant to be allowed to file a supplemental answer setting up such new matter, the refusal, of which right is sufficient ground for
Upon the whole case we see no error, and the judgment must be affirmed.