21 Kan. 1 | Ark. | 1878
The opinion of the court was delivered by
There are four assignments of error in this case, viz.: First, In granting leave to defendant to file his answer, January 22d, 1876; second, refusing leave to plaintiffs to verify reply; third, refusing to set aside the referee’s report; and, fourth, entering judgment for defendant in error, whereas, according to the law and the facts, it should have been for the plaintiffs.
I. The original petition was filed September 9th, 1874; to this petition a demurrer was filed, October 6th, 1874. On January 18th, 1875, an answer was filed, containing a general denial and an allegation of a defect of parties plaintiff. At the April term of 1875, and on April 17th, the death of Levi K. Moore was suggested, and the plaintiffs then filed an amended petition instanter, making the heirs of said Moore and one Mary Moore plaintiffs. At this term of court, the following stipulation was signed and filed in the case:
“It is agreed that if the Moore cases aré continued, all shall be tried on their merits next term, and that the stipulation signed before amended petitions were filed in Lacy v. Thacher et al. shall be read in evidence in all the cases on the trial, and that the new parties plaintiff in each of the cases are heirs-at-law of Levi K. Moore,- deceased. This applies to Nos. 3157, 3156, 3158, 3320, on trial docket of this court, May 18,1875. Thacher & Stephens.
L. W. Hover.”
On January 22d, 1876, and during the next term, the court permitted defendant to file an answer to the amended petition.
Plaintiffs contend that the filing of this answer was in violation of the written stipulation of May 18th. Such is not the fact. No answer had been filed to the amended petition of April 17th, 1875, at the date of the stipulation, and the action of the court in permitting an answer to be filed at the succeeding term was not an abuse of its discretion. It did not prejudice the rights of the plaintiffs, nor was it in conflict with the agreement. It does not seem to have-been the occasion of any delay or the reason of a continuance. While it is true that the plaintiffs wished to strike the answer from the files, yet, when the motion to that end was overruled they obtained leave to file a reply, and filed one on January 24th, 1876. .Then on January 27th, by the consent of counsel, the case was referred to R. J. Borgholthaus, Esq., to hear and determine the issues joined, and report the conclusions of fact and law to the court. The plaintiff participated in the trial before the' referee. In any view of the case, the first assignment of error must be overruled.
II. In the answer filed on January 22d, 1876, among other things, the defendant alleged, as a defense to the acts of trespass for which damages were claimed, that the same were done under and by the authority of Levi K. Moore, who was acting as the agent for all the plaintiffs, being duly authorized so to do. The reply filed in the case had never been verified, and, pending the hearing of motions to confirm and set aside the referee’s report, plaintiffs asked leave to verify their reply, which was denied. No error was here committed. The trial was over. It would not have aided the plaintiffs in any manner, if the leave had then been granted. The application came too late to be considered or to be of any benefit, even if it had been considered and allowed.
III. After the report of the referee had been filed, and the defendant had made a motion to confirm it, the plaintiff made a verbal motion to set it aside. On what ground, or for what reason, the court was asked to vacate this report, the record is silent. We cannot tell upon what question the court below was called to pass. As error is never presumed, and no error is shown, we are bound to suppose there was no error in this respect. A party cannot in this general way make his motions and predicate error on the refusal of the court to sustain them.
IY. As to the fourth assignment of error, even assuming that the allegation is sufficiently definite and sets forth the errors complained of, which is very doubtful, we are unáble to reverse the judgment for any reason there given. The record presented to us is in an unsatisfactory condition. It does not claim to present all the evidence, nor can we say therefrom that the cause was tried under such circumstances as to indicate 'that either the reply or its verification was waived. The only certificate is, that the foregoing is a complete exhibit of the record in this case, so far as desired by counsel, and contains all the evidence presented on the hearing of the cause on a verbal motion to set aside the referee’s report. All the presumptions being in favor of the judgment, and the pleadings in the case and the facts found by the referee being amply sufficient to sustain it, no error was committed in rendering the judgment for the defendant.
Many other questions are presented in the brief of the counsel for the plaintiif in error which must be passed unnoticed, because they are omitted from the assignments of error in the petition for review filed in this court, and, even if they had been referred to in such petition, would not now avail, because it does not appear from the record that the attention of the court below was ever called in any proper manner to said alleged errors.
The judgment of the district court must be affirmed.
Daniel K. Moore, et al, v. Fred. Bruñe.
Daniel K. Moore, et al, v. Henrt Leonard.
Opinion by
As it is agreed between the counsel in these cases that they are like the case of Moore v. Emmert, just decided, in everything except the amounts involved, and that what is said in one applies to all, we must, on the authority of Moore v. Emmert, supra, decide these adversely to the plaintiffs, and hold that the judgment in each case must bé affirmed, with costs.