97 Kan. 116 | Kan. | 1916
The opinion of the court was delivered by
F. B. Hazelwood sued J. F. Mendenhall on account of inj ury done to his crops by cattle which were allowed to run at large in violation of the herd law. He recovered a less amount than he asked, and appeals.
(1) The defendant maintains that the case should be dismissed for want of jurisdiction on the ground that less than one hundred dollars is involved. The plaintiff asked for $150 as actual damages, and $150 as punitive damages and attorney’s fee. His loss was assessed at $45, against which the defendant was allowed a set-off of $15, judgment being rendered for $30. On the face of the record, therefore, more than $100 is involved. But the defendant urges that while the plaintiff formally asks a reversal on account of two trial rulings, the assignments of error in this respect are frivolous, and were manifestly made merely in order to give this court jurisdiction on appeal, for the purpose of obtaining a review of the order of the trial court with regard to costs. One complaint made is of the refusal to allow punitive damages. It has been held that in an action under the herd law of 1872 (Gen. Stat. 1909, § 9179), relating to swine, punitive damages-can not be recovered. (Gripton v. Thompson, 32 Kan. 367, 4 Pac. 698.) That statute is not entirely similar to the one
Complaint is made of the rej ection of evidence of statements of an employee of the defendant. They are not shown to have been made in the course of his employment, and no error is apparent in that connection.
(2) The question of the proper taxation of costs is affected by a somewhat peculiar situation. The plaintiff began his action before a justice of the peace, on December 27, 1913. Five days later the defendant offered to confess judgment for $20. On January 7, 1914, the plaintiff filed an amended bill of particulars, which described his losses as having occurred during December, 1913. On January 27, 1914, the defendant filed a bill of particulars asking judgment for $30 upon an account against the plaintiff which the defendant had purchased on December 25, 1913. The plaintiff recovered a judgment for $45, and the defendant appealed. The case was tried in the district court without new pleadings. The jury found that the plaintiff had suffered injury to the extent of $45, and that he owed $15 on the set-off. Judgment was accordingly rendered for $30. The damages allowed to the plaintiff included $10 on account of losses sustained in December, after the action was begun, and $5 on account of an item that, although based on an occurrence in June, 1913, was mentioned for the first time during the examination of a witness in rebuttal. The defendant maintains that these two items, not having been in contemplation when the offer to confess judgment was made, should be disregarded in determining the effect of that offer upon the taxing of costs. On this theory (the recovery outside of those items being less than the amount for which the defendant had offered to confess judgment) judgment was
Upon substantially the reasoning employed in Cockerell v. Moll, 18 Kan. 154, the plaintiff should have been allowed to recover his costs. He was within the letter of the statute (Jus. Civ. Code, § 117) because he recovered an amount greater than that for which the defendant offered to confess judgment, and he was within the spirit of it because he was allowed, and in effect recovered, upon the very claim he was asserting, a greater amount than had been offered him with respect to that particular demand. The production of the purchased account was in effect a subsequent application of it in part payment of the plaintiff’s claim.
The judgment is modified in accordance with what has been said, and the cause is remanded with directions to allow the plaintiff to recover his costs.