70 P. 332 | Kan. | 1902
Plaintiff in error brought this action against the defendant in error on a note given by her and in replevin for the recovery of certain personal property mortgaged to secure the same. The property was delivered to the plaintiff. No redelivery bond was given, and it was sold after due advertisement. Plaintiff answered with a general denial, and also specifically alleged that the note sued on was the last of a series of transactions running through several years, in which transactions sufficient usurious interest had been paid fully to discharge the indebtedness sued on, and contained this further allegation :
“That of the consideration expressed in said note of $199.23, executed October 30, 1898, and to secure which the mortgage in this action was given, $195.44 was for excessive and usurious interest theretofore charged to and exacted from the defendant by said plaintiff. ” •
A motion was made by the plaintiff to strike out this allegation because it was a conclusion of law and not a statement of fact. , This motion was overruled., but at -the same time the court required the defendant to set out copies of the several notes evidencing the prior transactions, which was done. The refusal to strike out this allegation constitutes the first ground of error. Technically, perhaps, this should have been stricken from the petition, but no material error arises from' the court’s refusal to do so. The facts were finally all presented upon which this legal conclusion was based. This being an action in replevin, probably nothing more that a general denial was necessary.
The issues having been joined, a jury trial was waived by both parties, and the case referred to a
The evidence introduced in this trial is not preserved in the record. A meager and brief abstract of portions of it appears, but very material and controlling testimony does not appear. The court made very exhaustive and full findings of fact, the record showing that each and all of these findings were supported by abundant evidence..
It is urged that the court erred in refusing to render judgment for plaintiff upon the original report of the
Considerable space is given in the argument to
It is further urged that certain items of evidence were introduced, by the defendant over the objections of the plaintiff. One of these related to the rate of interest charged, oral testimony concerning which plaintiff claims was not the best evidence. Another is as to proof of certain items which were not pleaded in the answer. Another is as to the value of the use of. the property taken as an element of damage, it not being claimed in the answer. It is sufficient to say as to all these claims that no proper objection appears to have been made to the introduction of such evidence.
The personal property taken consisted of two mares, three cows, one heifer, and some hogs. In estimating the damage to the defendant by. the wrongful taking of this property, the court added to the value of the use of the usable property its usable value from the time of taking to the date of judgment, and to the value of the rest of the property interest thereon for the same time. It is claimed that the usable value should not have been included in the damages, but rather the interest on the value of all property at the time of the taking. The court adopted the proper rule. (Civil Code, § 185, Gen. Stat. 1901,$ 4619 ; Yandle v. Kingsbury, 17 Kan. 195, 22 Am. Rep. 282 ; Werner v. Graley, 54 id. 383, 38 Pac. 482.)
The judgment of the district court will be affirmed.