22 Kan. 731 | Kan. | 1879
The opinion of the court was delivered by
This case was originally brought before a justice of the peace of Doniphan county by the plaintiff in error against the defendant in error, to recover damages for destroying a hedge fence, and also certain growing wheat. On the trial before the justice, the plaintiff recovered judgment for $35 and costs. Thereupon, the defendant in error took the case to the district court on error, and obtained a reversal of the judgment. The alleged errors which the district court was called to pass upon are as follows:
1st. That the court erred in the instructions given to the jury on the trial of the said action, to which the said Mudenger duly excepted.
2d. That the said court erred in refusing to give the instructions which the said Mudenger prayed the court to give.
3d. That the court erred in permitting the counsel of said Holland to read the instructions on the part of said Holland to the jury in his closing argument to the jury, the said instructions not having been before read to them; to which the said Mudenger then and there duly objected and excepted.
4th. That the court erred in ruling out the evidence offered by the said Mudenger on the trial of said action.
5th. The court erred in admitting evidence of Holland to which the said Mudenger objected.^
6th. That the said judgment was given for the said Holland, when it should have been given for the said Mudenger, according to the law,s of Kansas.
7th. That the facts set forth in the bill of particulars of said Holland are not sufficient in law to maintain the aforesaid action against the said Emanuel Mudenger.
Counsel for defendant suggests that the order complained of is not reviewable, for the reason, as he alleges, that there is no judgment or final order in the district court. This suggestion is based upon a misapprehension of the record. The judgment of the justice of the peace was reversed, and judgment rendered against plaintiff for all costs. This judgment is subject of review here.
The judgment of^the district court will be reversed, and the case remanded with directions to the court below to render judgment in favor of the plaintiff in error, Thomas H. Holland, in that court, or to remand the cause to the justice with its order of affirmance.