37 Kan. 73 | Kan. | 1887
The opinion of the court was delivered by
This was an action brought by Lydia A. Amick against the Kansas Farmers’ Mutual Fire Insurance Company, on a fire-insurance policy, to recover damaged alleged to have been sustained by fire. The case was tried before the court and a jury, and judgment was rendered in favor of the plaintiff and against the defendant for $1,326 and costs. The defendant brings the case to this court for review.
The fire occurred on December 27, 1883. The action was commenced on December 23,1884. The defendant demurred to the plaintiff’s petition on January 31,1885. The demurrer was overruled on June 6, 1885, and twenty days were given the defendant within which to file an answer. The defendant did not file any answer within that time, but on September
We do not think that the court below committed any error in making this ruling. Why the defendant did not set up this defense sooner .is not shown; nor is it shown whether the defendant had any reasonable grounds to believe that the defense was true. No affidavit concerning the matter was filed, nor was any other evidence in support of the defendant’s application submitted to the court. Of course, under §139 of the civil code, the court may in any case, in furtherance of justice, and on such terms as may be proper, permit a party to amend his pleadings by inserting other allegations material to the case, when such amendment does not change substantially the claim or defense; but the amendment, in any case and at any time, can be made only “ in furtherance of justice,” and it must be affirmatively shown that the amendment is in furtherance of justice. No such showing was made in the present case. The proposed amendment was that a city ordinance' prohibited all persons from putting a stove-pipe through the roof of a building, and that the plaintiff in this case violated such ordinance, and that the fire was caused by reason of such violation. Now if this were true, the defendant could have known it long before this action was commenced, and could have set it up in an answer as soon as the action was commenced. It is probable that the defendant knew, when the
The defendant, plaintiff in error, also claims that the judgment is excessive. It is useless to discuss this question. There was sufficient evidence to warrant the verdict of the jury, and their verdict as now presented to us must be held to be conclusive.
The judgment of the court below will be affirmed.