1 Kan. App. 492 | Kan. Ct. App. | 1895
This is an action in replevin brought by Neil Wilkie against J. W. Connor, sheriff of Cowley county, Kansas, in the district court of Cowley county, to recover possession of 93 head of hogs which had been levied upon by said sheriff under an execution against one D. M. Carlton. Before trial of the cause plaintiff became insolvent, and the action proceeded in the name of one G. W. Ogg, as assignee of said insolvent debtor. There was a verdict and judgment for plaintiff below, and Connor brings the case here for review.
The first error complained of is the overruling of the demurrer of plaintiff in error to the amended per tition of the defendant in error. The defendant in error claims that this ruling of the district court cannot now be reviewed here, for the reason that more than one year has elapsed between the overruling of the demurrer and the filing of the petition in error in the supreme court. This position is not well taken. Where a demurrer is overruled, and the party filing same elects to plead in the action, he must await the result of the final trial, and cannot be permitted to file a petition in error in the supreme court until such fiual trial is had. (U. P. Rly. Co. v. Estes, 37 Kas. 229 ; Hulme v. Diffenbacher, 53 id. 181.) However, we consider that the demurrer to the petition was properly overruled. The amended petition alleged, in substance, that on or about May 10, 1888, Neil Wilkie and D. M. Carlton entered into an agreement, the terms of which were that Wilkie should furnish to Carlton certain moneys to be used in the purchase of hogs, which were to be shipped to market and sold and the proceeds to be applied, first, to the expenses
The second assignment of error is the overruling of the motion of the plaintiff in error for a new trial,
Objections to the.instructions of the trial court, to be available in this court, should be made and the ruling excepted to on the trial, otherwise they are waived. (Gafford v. Hall, 39 Kas. 166 ; Mercantile Co. v. Fullam, 43 id. 181; Mo. Pac. Rly. Co. v. Johnson, 44 id. 660.) For the same reason, the further objection raised in this court by the counsel for the plaintiff in error to other portions of the instructions given by the court, as well as the remark of the counsel in his argument to the jury; which is now complained of, cannot be considered.
This brings us to the fourth reason given why a motion for a new trial should have been sustained, viz., the refusal of the court to instruct the jury in writing. And this we consider the most serious question urged by counsel for the plaintiff in error. It appears from the record tlíat a short time before the close of the evidence, the attorney for the plaintiff in error, defendant below, requested the court to instruct the jury in writing, and thereupon the court refused so to instruct the jury in writing, using the following language :
“The court refuses to instruct the jury in writing upon request of the defendant: First, because under our rule this request is to be made at the commencement of the trial; and we also overrule it because the request is made only a few minutes before the conclu*497 sion of all the evidence in the case, and because the request might just as well have been made on yesterday, at the conclusion of the day's business, and the court could then have had opportunity to prepare the instructions during the adjournment, and not have delayed and detained the business of the court; and the court refuses, lastly and finally, because the request coming at this time wotdd necessarily detain the business of the court while the instructions were being prepared and reduced to writing.”
Counsel for the plaintiff in error urges that the statute makes it mandatory upon the trial court to instruct the jury in writing whenever requested so to do by either party, and cites the case of Rich v. Lappin, 43 Kas. 666, in support of his position; but in that case it does not appear that the question of the time ■when such request was made became a material factor either in the refusal of the trial court to give written instructions or the decision of the supreme court reversing the judgment for the failure of the trial court so to do. The record in that case disclosed that the court delivered his instructions orally to the stenographer, wrho wrote them out after the jury had retired, and the supreme court held that this did not comply with the statute requiring written instructions to be given upon request of either party. After careful investigation we have failed to find any case upon the point raised decided by our supreme court since the adoption of our present statute in regard to the order of procedure of trials in civil cases ; but in the case of the A. T. & S. F. Rld. Co. v. Franklin, 23 Kas. 75, the question as to whether a request for written instructions was submitted in time was passed upon in an opinion written by Valentine, J. After citing a number of cases decided by the supreme court of Indiana, from which state the statute of Kansas of 1868 with
"The rule also seems reasonable to us; for, while it imposes no hardship upon either of the parties or the cotinsel, a different rule might impose great hardship or great inconvenience upon both the court and parties in other cases waiting for their cases to be heard. If counsel may wait until the close of the argument before making the request, it would necessarily cause great delay in the proceedings of the court and materially increase costs and expenses. Generally, it would require an adjournment of the court to enable the judge to prepare his written instructions.”
Under our statute as it then existed, the argument of the counsel preceded the giving of the instructions by the court, while nów the instructions are given at the close of the evidence and before the argument of the counsel, and it would seem that the rule, as laid down in the case! last cited, ought to apply with the same force now to a request made just at the close of the evidence as it did under the former statute in the case of a request that was made just at the close of the argument. The business of the court under the order of procedure laid down by the present statute would be delayed to the same extent, and an adjournment would be necessary in nearly every case, unless the request for written instructions be made at a reasonable period of time before the close of the evidence. In the case at bar we cannot hold that a rule requiring this request to be made at the commencement of the trial is a reasonable one, for in many cases it is impossible for counsel to determine at the commencement of the trial whether written instruc
Plaintiff in error further complains of a remark made by the court in the presence of the jury during the trial of the cause, and alleges that said remark was prejudicial to the rights of the plaintiff in error, and should cause a reversal of the judgment. The record shows that D. M. Carlton was examined by both plaintiff and defendant at different times, and his testimony introduced in the form of depositions at the trial. The statements of the witness in the two depositions were very conflicting, and would impress even a casual observer with the idea that the-witness was far from reliable. When the second, deposition given by Carlton was offered at the trial,, the court asked the question, “Whose deposition is. that?” and, upon being informed that it was the-deposition of the witness Carlton, made use of the following expression: “He must be an awful liar.”' There can be no doubt that a remark of this character-■was extremely reprehensible, and tended to detract, from the dignity of the court and the entire proceed
The seventh and last reason urged for a reversal of the judgment is, that the verdict is not sustained by sufficient evidence, and the counsel for the plaintiff in error reiterate their argument in regard to the ques
There being no material error, the judgment of the district court is affirmed.