9 Kan. 511 | Kan. | 1872
'The opinion of the court was delivered by
The answer and reply were filed out of time, and without leave, or consent. On motion of plaintiff .they were stricken from the files; but with leave of the ■court, on showing made, were refiled, and the cause was tried •on the issues so made up. Whether the order was right or wrong, unless defendants suffered some injury thereby they •cannot claim a reversal of the case on' that ground, as they had the benefit of their answer. But it is urged that by that ■action they were forced into trial, at that term, without preparation. Without such order it is said the case would not have stood for trial, as the issues were not made up ten •days before the commencement of the term. . Let us see how this is: Had an answer been filed in proper time the issues would have been made up in time for trial at the June Term. An answer filed out of time, and without leave, is no answer, .and requires no notice. So that when the court met, the •defendants, were in default, and the case was regularly for hearing at that term. Had the defendants proceeded regularly, and obtained leave to file their answer, it ought to have -been on terms that the delay should not work a continuance. It is not intended that such terms would have necessarily been imposed; but that they would, be proper terms, where no cause was shown for delay.
III. The next objection is that certain questions were asked that were leading in their character. The objection to these questions was general. It is asking too much of a court to analyze each question, as it is asked, to see if it is open to any possible objection. It is the duty of the counsel to point out whether the objection is one to the form of the question, as distinguished from the relevancy, or materiality, of the evidence sought to be elicited. And when the objection is to the form only, it is a matter resting so much in the sound discretion of the court, whether such a course of examination will be allowed, that it will be an exceptional case where this court will reverse a case for that cause only. 1 Greenl. Ev., § 435, and notes. In this case it is sufficient that no objection was made that the questions were leading. ■ Had that objection been made, the party could have so framed his question as to have obviated the objection.
IV. There was no state of facts presented that authorized the plaintiff in error, Luke, to prove damages in consequence of a litigation to the title to the land. Nor was there any error in refusing to permit Luke to prove what was due from Stephens to Luke. The averment in the answer was that
V. The instructions submitted the issues fairly to the jury. If the modification made by the court to the fourth instruction asked, by the defendants is' open to the objection made by plaintiffs in error, then the answer is, that the finding of the jury, that Luke knew what he was paying for the land when he bought it of the agent of Johnnycake, and that the deed and notes were not misread to Luke, shows that plaintiff in error suffered no loss by reason of the instruction. "We do not decide however that the modification was wrong.
• VI. The amended petition was upon two notes, both due when the amended petition was filed. The court directed the jury, if they found for plaintiff, to find what amount was due on each note separately. The jury returned their verdict for one amount, evidently the sum of both notes. The court below refused to set aside the verdict for this cause, and the counsel for plaintiffs in error fail to show this court how they can be injured by this disregard of the directions of the court by the jury. It is true, the jury should have followed the direction of the court in this respect; but as no injury followed their error, there ought to be no reversal on account of it.
VII. It is insisted that the verdict is against the weight .of the evidence. This court, as has been often decided, is not in as good a situation to form an opinion as the court below on that question; and when there is evidence to support the verdict, and the court which tried the case has