1 Kan. 97 | Kan. | 1862
By the Court,
■ This suit, originally brought before a justice of the peace, was taken up and finally tried at the September term, 1858,. of the District Court for Douglas county. The suit was brought on a note, dated February 28, 1857. The answer sets up as defense two causes — payment in full and set off. There are three causes of error set out in the petition.
First. The refusal of the Court to permit the defendant below to testify.
Second. That the Court erred in instructing the jury that the offset, plead by Mallory, should be disregarded if the jury were satisfied from the testimony in the case that the offset was originally in favor of a partnership.
The third ground of error is not relied on.
The law in force at that time permitted the party to testify in his own case, but not till he had given the adverse party “ reasonable notice ” of his intention so todo. {See Code 1858, §§ 810, 818.)
The notice in this case was given on the day of trial. Was this the “ reasonable notice ” required by law ? The object sought tp be obtained by the notice was to give the adverse party an opportunity to prepare his case to meet such testi
It is not neoeasary to inquire into the law of set off then in force, because it was not so pleaded as to be available in any case.
The paragraph of the answer attempting to set up that defense, is as follows: “ That the said plaintiff in February or March, 1857, was indebted to said defendant, on account, in the sum of ten dollars and fifty cents — the said amount is annexed to the answer, and forms part thereof.”
No reasoning is required to show that on such pleading no set off whatever could be proven. No reply was made to this part of the answer, setting up new matter, and so far as the plaintiff was concerned, it must ‘have been taken as true; and being true, it showed only that some eighteen months before the answer was filed, the plaintiff was indebted to the defendant. No averment is made that it was still due, or that it had not been discharged. The plaintiff properly made no answer to such pleading — admitting, as well he might, its entire truth. It may have been in the power of the Court to have permitted an amendment of the answer, where the proof was given, but no offer to amend was made, and the presumption is that the defendant below chose rather to let the case go to the jury, as it then was, rather than continue at his costs, which would have been the necessary result of putting in an entirely new answer of set off, to which the plaintiff would have had the right to reply and time make the same.
Though not assigned as error, it is claimed that the judgment for costs is erroneous. We do not think so.
The judgment is affirmed, and a mandate will be sent to the Court below instructing it to carry the -udgment there
