17 Kan. 278 | Kan. | 1876
The opinion of the court was delivered by
“ Plaintiff then offered the records of the company to prove the change of name of the company, and that defendant was a director, and had managed the construction of the road over the land after he owned it.- To this defendant objected, stating it was not necessary, as they had not denied anything under oath but the deed of Howard, and that it was unnecessary to prove what was not denied. Defendant then read the affidavit of defendant to his answer to show what was denied. The court then refused to permit plaintiff to read from the records, saying it was unnecessary to prove matters that were*282 not denied, and were admitted. To this the plaintiff at the time duly excepted. Plaintiff then rested.”
It cannot be denied that there seems to be some foundation for the plaintiff’s claim, that it was misled by the declarations of counsel, and the ruling of the court. Indeed, it is quite doubtful in our minds whether the case is not one calling for our interference. And yet, after a careful examination we are constrained to say that there is not enough to overthrow the presumption in favor of the court’s ruling. The statement of defendant’s counsel is not an admission of a fact or facts, or a waiver of proof, but rather an expression of an opinion as to the coustruction of a pleading. The terms of this answer were as fully known to one counsel as another. It was' not a long, complicated pleading, but as short and simple and clear as language could make it, a general denial excepting a couple of facts. The statement of counsel was not in reference to the matters concerning which plaintiff omitted to offer testimony. And especially there is no evidence that the plaintiff was actually misled in this matter. It may have been misled; the circumstances were such as might easily have misled. But then the omission may have been intentional, or from any of the reasons heretofore suggested. Which was the truth, was not shown. We can- only infer; and it is a fact which should have been positively shown. If the court had sustained the application, we might fairly have said that it was satisfied from all the circumstances, (those countless matters which can never be written down and placed upon record,) that the plaintiff was misled. As it overruled the application, we are compelled, to think that it was likewise satisfied that the plaintiff was not misled. More than this: plaintiff is in possession, and having, the use of the right-of-way. This decision is no adjudication, or at least can be shown from the whole record to be no adjudication against its right to the possession and use. If Dryden wishes to recover possession, he will have to establish his right by other evidence than this judgment. He may be relieved from liability for any prior trespass, but he is not