Wilcox v. Byington

36 Kan. 212 | Kan. | 1887

The opinion of the court was delivered by

Horton, C. J.:

All of the alleged errors in this case are trivial and unimportant. If the motion for additional security for costs ought to have been allowed, this is not a sufficient ground for a reversal of the judgment, as it appears the plaintiff below was successful upon his claim against the defendant below, the party making the motion. The officers interested in the costs seem to be satisfied with the action of the court in overruling the motion for other security. As the defendant is liable for all the costs included in the judgment rendered against him, he is in no condition to make any complaint, nor have any of his rights been prejudiced by the ruling. The lease was properly introduced in evidence, and there was no material error in the introduction of the renewals entered thereon, because, although the defendant in the court below had no knowledge of such renewals, as long as he retained possession or control of the premises he must be considered to have held under the lease.

Legrand Byington had the right to sell and transfer the written lease to his son, Seymour L. Byington, although he was a minor. The written statement made by Legrand Byington in 1873, and the letter of Bradford Miller of February 3, 1873, were improperly admitted in evidence; but these errors are immaterial, as both Byington and Miller testified of their own recollection of the amounts severally stated by them. Byington figured up the amount of rent due from Wilcox from 1868 up to 1873. Miller testified that the amounts mentioned in his letter were paid by him for rent to Wilcox. The ease was submitted to the court without a jury, and therefore the introduction of these immaterial papers were less likely to cause any .prejudice.

The refusal of the court to state its findings of fact in writing, was not, under the circumstances of this case, error. Judgment was rendered March 30,1885. The motion for a new trial was filed the same day, but not argued until April 25,1885. On that day the motion was overruled. The defendant below never made any request to the court to state its conclusions of fact and of lawT, until after his motion had been overruled; then it was too late. The request should have been made before the court announced its findings. It is the general rule of practice for the parties to request the court, either just before or at the close of the argument made in the ■case, to state its findings in writing. Clearly, the request should be made before the final decision of the court. We do not think the statute contemplates that a party to an action may wait until the trial is ended, the final judgment rendered, and his motion for a new trial overruled, before intimating to the court that he desires the conclusions of fact and of law stated in writing. (Civil Code, § 290; Greene v. Williamson, 21 Kas. 68.) In this case, the trial court undoubtedly would have found specially, and would have stated in writing all of its findings, if the slightest intimation had been given before the final decision, that such a thing was desired.

The claim that the action was barred by the statute of limitations is not tenable. The lease was sold and assigned by Legrand Byington to Seymour L. Byington, on November 23,1870. Seymour L. Byington was then a minor, and he commenced this action on December 17,1883, within one year after he became of age. (Civil Code, §17.)'

An examination of the evidence and judgment does not satisfy us that the assessment of the amount recovered is too large. The omission of .the clerk of the court to include the amount of the costs in the judgment as recorded is not a ground for setting the same aside. “The judgment will certainly authorize a correct taxation of the costs. If, however, the clei’k should tax them erroneously, the court below will undoubtedly correct the taxation on motion.” (Linton v. Housh, 4 Kas. 536, 541; Clippinger v. Ingram, 17 id. 585.)

The judgment of the district court will be affirmed.

All the Justices concurring.