Netcott v. Porter

Jul 15, 1877
Reporters:
Before:
Valentine

The opinion of the court was delivered by

Valentine, J.:

The plaintiff in error assigns, in his petition in error, eight different grounds for a reversal of the judgment of the court below. But on the hearing in this court, and in his brief, - he seems to abandon all but two of them—the sixth and seventh. The first five of said assignments relate to the refusal of the court below to give certain *133instructions to the jury, and the eighth is, that “the court erred in rendering judgment against the plaintiff” in error. These assignments (the first five, and the eighth,) are evidently all untenable. Under the evidence in the case the court gave all the instructions that were necessary, and under the verdict in the case the court rendered the proper judgment. But without entering into any greater particularity with regard to these, we pass to the sixth and seventh assignments.

1‘mai1;0verdict7 evidence. I. The sixth assignment is, that “the court erred in overruling the defendant’s motion for a new trial.” And the only grounds upon which the motion for a new trial was made, are as follows: “1st, The verdict is contrary to law; 2d, The verdict is contrary to the evidence.” Now * we cannot say from the evidence brought to this court that the verdict is contrary to either the law or the evidence; and therefore we cannot say that the court below erred in overruling the defendant’s motion for a new trial. Under the rules of law, repeatedly enunciated by this court, we think the evidence is sufficient-to sustain the verdict; and if it is, then we suppose it will not be claimed that the verdict is contrary to law. The plaintiff in error, defendant below, gives in his brief two lists of items claimed by him to be payments made by him to the plaintiffs below. One of these lists he entitles, “ plaintiffs’ showing,” and the other he entitles, “ defendant’s showing.” Now whether either the plaintiffs or the defendant ever made any such showing, we hardly think it necessary to consider. For even if the largest list were true, it would not even then necessarily follow that the judgment of the court below should be reversed. But we do not think that either list is true. Of course there was some evidence to support said lists, but still as we think, and as the court below and the jury evidently thought, they are not true with respect to all their items. The list entitled “ plaintiffs’ showing,” is the smallest list in its aggregate amount, but even that list is too large. The plaintiffs never made any such showing as that list imports that they did. Many of the items *134therein inserted are only to be found in the defendant’s evidence. And some of such items we think are too large, some of them are repeated, and some of them are not true at all. Or at least we cannot say from the evidence that they are not too large, or are not repeated, or that they are true. Taking all the evidence together, we cannot say that the verdict is contrary to the evidence. We cannot even say that it is contrary to the weight of the evidence, or the preponderance of the evidence. We therefore think that the motion for a new trial was rightfully overruled.

2 Reply when unnecessary, 3. waiver of repiy. II. The seventh assignment for error is, that “the court erred in overruling the defendant’s motion for judgment.” This motion was made upon the ground that the plaintiffs ^ad not replied to the second defense stated in defendant’s answer as amended, and that said second defense for that reason should be taken as true. Now the record shows at least two good answers to this assignment; and the defendants in error say in their brief that there is still another good answer which the record does not show. We however can take notice of only what the record shows. The answers to said assignment as shown by the record are— first, the amended answer did nothing more than to put in issue allegations already set forth in the plaintiffs’ petition, and therefore it was not necessary for the plaintiffs to reply to said answer. (Wilson v. Fuller, 9 Kas. 177, 192, 193.) Second, the case was tried by both parties as though all the allegations of the amended answer had been put in issue; and therefore, under such circumstances, it must be deemed that a reply was waived, even if under other circumstances a reply would have been necessary. ( Wilson v. Fuller, supra; Russell v. Smith, 14 Kas. 366; Bent v. Philbrick, 16 Kas. 190; Holden v. Clark, 16 Kas. 346, 357; Hopkins v. Cothran, 17 Kas. 173, 178, 179; K. P. Rly. Co. v. Taylor, 17 Kas. 566, 569; Walker v. Armstrong, 2 Kas. 198, 222.)

The judgment of the court below will be affirmed.

All the Justices concurring.