Emporia National Bank v. Board of Commissioners of Lyon County

25 Kan. 85 | Kan. | 1881

The opinion of the court was delivered by

VALENTINE, J.:

This action was originally commenced in the district court of Lyon county, in the name of the board of county commissioners of such county against the Emporia National Bank and others, for damages alleged to have been sustained by the plaintiff through certain alleged conspiracies and wrongs on the part of the defendants in connection with certain railroad stock owned by the county, and certain county bonds issued by the county. The defendant bank moved the court to strike out certain portions of the plaintiff’s petition, and to require the plaintiff to make its petition more definite and certain in certain particulars, which motion the court overruled, and the defendant excepted. The same defendant then demurred to the plaintiff’s petition on the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled, and the defendant again excepted. ’ And the defendant, the bank, now, as plaintiff in error, brings the case to this court for review.

We think it is wholly unnecessary to discuss the facts of this case, as they are alleged in the plaintiff’s petition. The petition was sufficiently definite for all practical purposes, and the matter objected to in the petition was generally not objectionable, if true; and the small portion which might possibly be objectionable, could not reasonably prejudice the substantial rights of the objecting defendant. It will be noticed that only the Emporia National Bank objected to the petition. The other defendants seemed willing to contest the truth of the allegations of the petition, without interposing any motion or demurrer. Besides, we cannot consider the ruling of the court below upon the motion any further than is necessary to see how far such ruling was involved in or might have affected the ruling of the court below upon the demurrer. A petition in error does not lie from the overruling of such a motion. A petition in error, however, does lie from,the overruling of the demurrer, and if the ruling of the court upon the motion in any manner affected or should have affected the ruling on the demurrer, then we may consider the ruling on the motion; but otherwise, not. Now we do not think that the ruling on the motion did or should have affected the ruling on the demurrer in any respect. A cause of action was stated beyond all doubt and beyond all question in the petition. And striking out all from the petition that might reasonably have been stricken out, still a good cause of action would remain stated in the petition. Also, whatever election the plaintiff might have made as to the measure of its damages, (and such election is really what tbe latter portion of the defendant’s motion asked for,) still tbe petition would state a good cause of action. But we cannot say that the court below erred in refusing to require this election. Indeed, we think the ruling of the court below upon the entire motion was right, except -.possibly the court might have ordered some portions of the petition to be stricken out. But with these portions stricken out, the petition would be good, and the demurrer should of course have been overruled. Supposing that the ruling of the court below upon the motion was slightly erroneous, still a rightful ruling thereon would not have required a different ruling upon the demurrer from that which was in fact made by the court below. Hence the ruling upon the demurrer was right in whatever manner we may view the case.

The decision of the court below will therefore be affirmed.

All the Justices concurring.