89 P. 913 | Kan. | 1907
The opinion of the court was delivered by
This action was commenced in the district court of Neosho county to recover damages alleged to have been sustained by the negligence and unskilfulness of the defendant in “shooting” an oil-well. The defendant was in default of an answer, and made application to the court for permission to plead. The court granted leave upon condition that it would plead to the merits. The plaintiff was a foreign corporation, and the defendant desired to file a plea in abatement, on the ground that plaintiff had not complied with the law relating to such organizations and .therefore had no right to maintain the action. The court insisted upon a plea to the merits, and thereupon a general denial was filed, and the case continued to the next term. At the trial the defendant objected to the introduction of any evidence, for the reason that the petition did not state facts sufficient to constitute a cause of action. The petition in averring the negligence charged it disjunctively, as consisting in having too much water in the well when the shot was fired or in not placing the shot deep enough in the well. The plaintiff amended its petition instanter by striking out the last clause of this disjunctive statement, and thereupon the defendant insisted upón the right to plead to the amended petition generally, but this was denied by the court and the general denial was refiled.
This action of the court is vigorously assailed as an abuse of discretion. We are unable to agree with this contention. The only absolute right a party has to plead is given by the statute; when that right is exhausted the question becomes one of practice, to be determined in . each case by the court. A person in default is in a sense out of court. In practice, however, he may come in at any time, and will be per
This case presents no facts from which an abuse of discretion may be inferred. When the request to plead was made default had existed for. nearly sixty days, and no excuse whatever was given for defendant’s neglect. Parties may not ignore proceedings pending against them and then insist upon favors which must of necessity work inconvenience or injury to the adverse party.
It is urged that when the plaintiff amended its petition by striking out one clause of -its disjunctive' statement the right to plead generally to the amended petition was no longer a matter of judicial discretion, but existed as a matter of legal right. .We are not aware of such a law in this state. The rule suggested would be unreasonable, if of universal application. The right to plead under such circumstances should to some extent depend upon the nature of the amendment, and is subject to the control of the court. If a material amendment be made to a pleading during the trial, the new matter might be such as would surprise the adverse party and render him unable to proceed without a change in his own pleading and time for preparation. In such a case it might be a gross abuse of discretion to deny a further plea to the amended pleading. But where, as in this case, the amendment does not materially change the attitude •of the parties, no new plea being necessary to meet the averments of the amended pleading, we see no necessity, or occasion for a reopening of the case for dilatory and technical pleas.
In this case the court permitted ample opportunity for the litigation of the merits of the controversy be
Complaint is made that the- plaintiff failed in its proof. But the jury returned findings of fact with the general verdict which fully sustain it. We are unable to say that there was no evidence upon which to make the findings, and therefore cannot disturb the judgment on that ground.
The judgment is affirmed.