23 Kan. 464 | Kan. | 1880
The opinion of the court was delivered by
This action was originally brought by Frank Osborn, in a justice’s court, to recover of J.B. Ziegler the sum of $154.85, for money alleged to have been advanced by Osborn to Ziegler on the 16th day of April, 1877. Upon trial before the justice, judgment was rendered against Osborn, from which he appealed. At the October term of the district court the following order was-, on motion of Osborn, made in said case:
“Now, on the 31st day of October, 1878, this cause came on to be heard, on the motion of plaintiff, for leave to file an .amended petition herein and a continuance of said cause; and it is ordered and adjudged that said plaintiff have leave to file an amended petition within thirty days from the rising of this court; that the defendant have thirty days thereafter to answer — the plaintiff ten days to reply.”
The court adjourned on the 4th day of November, 1878. On the 2d day of December, 1878, the plaintiff filed his .amended petition, which in substance alleges: That on the 3d day of March, 1875, Ziegler, being an attorney at law, .and an attorney for one I. N. Fletcher, was desirous of bringing an action of replevin in favor of Fletcher against Reid arid Wilson, and requested Osborn to become a surety on the undertaking necessary, to be given, in order to commence said action; that Osborn, at the request of said Ziegler, became surety; that judgment was rendered against said Fletcher in said action, execution duly issued and returned unsatisfied; that on November 9, 1875, after due notice, Osborn was adjudged to pay the costs, and on November 20, 1877, execution was issued upon said judgment against him, and on or about the 27th day of November, 1877, he paid
On the 20th day of March, 1879, Ziegler moved to strike the amended petition from the files for the reasons assigned in his motion as follows: First, that it was filed out of time; second, that it stated a new and independent cause of action. This motion was overruled, and the court adjudged Ziegler to be in default. Ziegler then asked leave to file an answer, and in support filed his own affidavit, and also the affidavit of John Oliphant, which application to answer was by the-court overruled. The answer which Ziegler desired to file was a general denial. The court then adjudged Ziegler to be in default, and without hearing any testimony rendered judgment against him for the full amount of Osborn’s claim, and refused to permit Ziegler to offer any testimony in his behalf. A motion for new trial was filed, heard and overruled. To all of the foregoing rulings of the court, exceptions were duly taken and preserved. From the judgment of the court below Ziegler appeals to this court, bringing the case here on petition in error.
All the foregoing rulings of the court below are assigned for error, and whether any of such assignments can be sustained or not, we shall now proceed to consider. Certainly the court below did not err in making the order permitting the parties to file new pleadings. (Justices’ Code, §122; Comp. Laws of 1879, p. 720.) But whether the plaintiff kept himself within permissible bounds when he drew up and filed his amended petition, is not so clear. His amended petition is certainly a very radical departure from his original bill of particulars filed by him in the justice’s court. It is hard to rectígnize it as setting forth the same cause of action as was originally set forth in such bill of particulars. Indeed, the two pleadings exhibit but very few signs of relationship, and yet we suppose they were intended to set forth the same identical cause of action. And, as there are indeed, a few slight resemblances between them, and as the defendant did not
We think, however, that the court below erred in holding that the defendant was absolutely and entirely in. default. There can be no such thing as a default in a justice’s court, where the action is not founded upon a written instrument; and when an action is appealed from a justice’s court to the district court, the parties may try the case upon the same pleadings, and the same evidence, and in the same manner, as they might have done on the trial in the justice’s court. (Stanley v. Farmers’ Bank, 17 Kas. 592.) The district court may, however, in furtherance of justice, “allow” new or amended pleadings to be filed. (Justices’ Code, §122.) But the filing of a new or amended pleading by the plaintiff will not place the defendant in absolute default. (Kuhuke v. Wright, 22 Kas. 464.) Every portion of the plaintiff’s cause of action which was previously in issue will remain in issue, although the defendant may not file any new or amended pleading. It is only the new matter set up in the new or amended pleading of the plaintiff that needs an answer; and it is only as to
The judgment of the court below will be reversed, and cause remanded for further proceedings.