91 Kan. 188 | Kan. | 1914
The action was not one for the recovery of money. It was an action to rescind a transaction on the ground of mental incapacity, involving restoration on both sides, including money to the plaintiff, the cancellation of instruments, and other equitable features. Therefore a jury trial was properly denied.
It is not practicable and would be unprofitable to discuss one by one the various assignments of error, although they have all been examined.
Many of the objections to evidence which was excluded were well founded. Matters like the Texas trip, the condition of mind of Oswald E. Thieme’s mother, and his conduct on several occasions were investigated with sufficient fullness, and the evidence concerning them which was rejected would not have changed the result. The rulings relating to evidence excluded as not proper cross-examination were correct. Such evidence extended to matters and occasions not “directly connected with the facts testified to in chief.” . (Blake v. Powell, 26 Kan. 320, 326.) If, however, the testimony were regarded as important by the plaintiff, he should have made the witnesses his own, or asked later to open the case to admit the evidence as a part of his case in chief, or at least have presented the evidence to the court for consideration on the motion for a new trial. The last observation meets all the assignments of error relating to excluded evidence. It may be conceded that the court, might well have been more liberal in its rulings. Still, if the plaintiff believed that the rejected evidence ought to have been considered, and that if considered it would probably have changed the result, he should have gathered it up and presented it to the court at the hearing on the motion for a new trial when the court was finally determining whether or not the decision was wrong. (Civ. Code, § 307.) When this is not done claims of error in the exclusion of evidence at the trial are waived.
The judgment of the district court is affirmed.