6 Kan. 203 | Kan. | 1870
The opinion of the court was delivered by
The first error complained of in this case is, that the petition does not state facts sufficient to constitute a cause of action. The cause of action is founded on a note payable in State warrants, on which several payments were indorsed. The date of the last payment, as indorsed, having been made, more than three years before the action was commenced, the petition was defective in not stating a present existing right of action; (Zane v. Zane, 5 Kas., 134.) The cause was regularly tried below, on the pleadings and evidence; and no ques
It is difficult, perhaps impossible, to lay down a rule which shall determine with accuracy and precision what defects will be considered fatal when presented to this court for the first time. We will content ourselves with
The cause of. action is fully and perfectly stated in the petition, and of’itself sufficient to sustain the judgment; but at the same time other facts are shown, which may or may not be a perfect defense. On their face they appear to be so. The defendant does not choose to avail himself of that defense in the court below, but tries his case on other issues. It is too late to raise the question in this court. It would give the defendant an unfair advantage of a second trial, on the other issues. If the statute had really barred the action, he has lost that defense by his own neglect,'and cannot justly complain in this court. To this effect the Supreme court of Ohio deckled, in Sturges v. Burton, 8 Ohio St., 215.
These are all the causes for which it is claimed that a new trial should be granted, and having found no error in them, the judgment is affirmed.