Mercantile Firm of O. Fagerberg & Brother v. Johnson

| Kan. | Jan 15, 1892

The opinion of the court was delivered by

Johnston, J.:

The mercantile firm of O. Fagerberg & Brother brought an attachment proceeding against Charles Johnson, and caused two promissory notes to be attached by a constable. John W. Johnson, who claimed the ownership of the notes, and that they were sold and assigned to him before they were due, brought an action of replevin against the constable and the mercantile firm of O. Fagerberg & Brother to recover the notes, and, at the February term, 1889, of the district court of Pottawatomie county, recovered a judgment. On April 26, 1889, the mercantile firm filed a petition, asking a new trial, on the ground of fraud in obtaining the judgment, and because of surprise and newly-discovered evidence. Afterward, by leave of the court, an amended petition was filed. Attached to the petition, and made a part thereof, was a large volume of testimony, most of which had been used upon the former trial. Johnson demurred to the original petition, and also to the amended petition, upon the ground that the allegations of the same were insufficient; which demurrers were sustained by the court. O. Fagerberg & Brother excepted to the rulings, and come here contending that both the original and amended petitions state sufficient facts, and that the demurrers to them should have been overruled. No oral argument was made when the case was presented, and there is none contained in the brief which was filed. After a brief statement of the action of the court, the plaintiff in error says in its brief that the demurrers should have been overruled, and to sustain the same it states: “ See the petition and amended petition for a new trial, commencing at page 3 of the record.” The petition and the amended petition, together with the evidence which has been attached to the same and made a part thereof, extended from page 3 to page 103 of the record, and the testimony attached constitutes 70 pages of this record. The errors complained of are not specifically pointed out, and the ease is not presented in such a manner as to require an examination of the record and of the errors of which complaint is made. (Building Association v. Martin, 39 Kan. 750" court="Kan." date_filed="1888-07-15" href="https://app.midpage.ai/document/topeka-primary-assn-university-of-builders-v-martin-7887407?utm_source=webapp" opinion_id="7887407">39 Kas. 750; The State, ex rel., v. Turein, 46 id. 695; 27 Pac. Rep. 148.) Notwithstanding the imperfect presentation of the case, we have examined the record and find that it discloses no error.

The judgment of the district court will be affirmed.

All the Justices concurring.