58 Kan. 651 | Kan. | 1897
This was an action against the principal and sureties upon the official bond of L. M. Krause as county treasurer of Barton County. Krause was first elected to the office in 1887, for the term commencing in October, 1888, and he was reelected in 1889 for the term commencing in October, 1890. The official bond given for the second term is the one upon which this action was brought, and it was alleged in the petition that the bond was executed and filed for the second term, commencing October 2, 1890, and ending October 2, 1892. It was further alleged that he received as such treasurer $804,870.90 ; that at the end of the term there was due from him and should have been turned over to his successor $56,440.69 ; but.that in fact he only turned over $51,-112.27, leaving a deficit for the term of $5,328.42, for which judgment was asked. A trial was had without a jury. Although no claim of a deficit during the first term was made in the pleadings, the court examined, to some extent, the accounts of the treasurer for that term, and, in its findings, held that the deficit for both terms was $4,536.97, of which $2,990.85 should be charged to the first term, and the remainder, $1,546.12, to the second term. Assuming that the question was open for decision, the court held that the Statute of Limitations barred the recovery of the deficit that occurred during the first term of office,
The allowance of an amendment introducing a new and distinct cause of action, after the issues had been joined and the trial begun, would be a questionable practice. The Code provides that in furtherance of justice an amendment may be made, before or after judgment, in order to conform the pleading or proceeding to the facts proved, “when such amendment does not change substantially the claim or defense.” Civil Code, § 139. The amendment sought to be made would have changed substantially the claim of the plaintiff, by introducing a new cause of action upon a written instrument entirely independent of the one upon which the action was originally brought. Under the common law, an amendment introducing an entirely new cause of action was not allowed, and although, under the codes, more liberal rules obtain as to amendments, yet most of the courts deny the right to introduce new and distinct causes of action after the issues have been joined and the trial begun.
There is another objection to such an amendment, or to treating the petition as amended. The sureties on the two bonds were not identical. One of the defendants who was on the second bond, and against whom judgment was rendered, was not a surety upon the first bond; and as the plaintiff asked and obtained judgment against that surety upon the second bond an action upon the first bond could not properly have been joined. The Code provides what causes of action may be joined; but it further ' provides that “the causes of action so united must all belong to one of
There was some other testimony that tended to prove the amount in the treasury at the time of this examination, but the trial court specifically states that its finding as to the amount on hand at the time stated was based upon this examiners’ report. For some reason, the court treated the examiners’ report as evidence of a conclusive character, and held that it completely overthrew the case as made by the State. The error therefore must be regarded as prejudicial, and for this reason alone the judgment will be reversed and the cause remanded for a new trial.