Green v. Dunn , 5 Kan. 254 ( 1869 )

By the Court,

Valentine, J.

On the 19th day of October, A. D. 1868, Thomas Harrison obtained a judgment against the said Allen W. Green, Peter Dunn and James Brownlee, on a certain promissory note given by said Green as principal, and said Dunn and Brownlee as sureties; and on the 28th day of October, A. D. 1868, the property of the said Dunn and Brownlee was seized in execution to satisfy said judgment.

On the 15th day of November, A. D. 1868, said Dunn and Brownlee commenced an action before a justice of the peace against said Green for the amount of said judgment.

On the 21st day of November, A. D. 1868, the said Dunn and Brownlee paid said judgment and costs, amounting to $299.08.

In the justice’s court judgment was rendered against Green and he appealed to the district court.

On the 29th day of April, A. D. 1869, Dunn and Brownlee filed, in the district court, in said case, an amended petition, setting up among other things the fact that they had paid said judgment as aforesaid and praying for a judgment in their favor and against Green for $299.

On the 30th day of April, A. D. 1869, Green, without raising any question as to the plaintiff’s right to file said amended petition — without raising any question as to their right to tender an issue founded upon facts that occurred subsequent to the commencement of the suits, answered to the merits by simply filing a general denial to said amended petition.

Upon the issues thus made by said amended petition and answer, the parties voluntarily proceeded to trial, and the court found in favor of the plaintiffs, and against the defendants; and on the 1st day of May, A. D. 1869, rendered judgment in favor of the plaintiffs, and against the defendant, for $312.28; and this judgment the defendant claims is erroneous, and he desires to have it reversed by this court.

The only exceptions to the rulings of the court below were: First, its conclusions of law upon its findings of fact. Second, its refusal to grant a new trial; but the ground for a new trial not being stated the latter exception is not relied on in this court; hence the whole case of the plaintiff in error in this court is founded upon the first exception.

The assignments of error are as follows:

1. The petition in the court below does not state facts sufficient to constitute a cause of action.

Error : Excepturns. There are two answers to this assignment: ° First, the question whether the petition states facts sufficient was not presented to the court below. [McBride v. Hartwell, 2 Kas., 410; 1 Kas., 488; 6 Barb., 55, 8; 8 Abb., 429.] Second, the amended petition upon which the parties proceeded to trial does state facts sufficient to constitute a cause of action.

2. The second assignment of error is that “ The court erred in its conclusions of law arrived at from the facts found.” Under this assignment the plaintiffin error claims, that it was error in the court below to render any judgment in this case against him; first, because no cause of action existed against him at the commencement of the action; and second, because no judgment could properly be rendered against him on a cause of action that arose subsequent to the commencement of the action.

Insufficiency of waited: We shall not discuss or decide the first prop-x x osition. As to the second, we would say that the defendant below raised the question too late for it to avail him anything.- At the time the plaintiffs below filed their amended petition they had a good cause of action against the defendant below, and they stated it fully in their petition; and if the defendant below ever intended to object to litigating such cause of action, because it arose subsequent to the commencement of the suit, he should have done so before he answered to the merits. He, however, made no such objection. He answered to the merits.

He denied that the said plaintiffs below had ever paid the judgment, that they claimed in-their petition to have. paid; and he chose to litigate the question then and there, and after taking his chances upon the merits of the question, after taking up the time of the court and incurring costs in litigating that question, and after having failed, he cannot then, for the first time, be allowed to raise the objection that the said question is not a proper subject of litigation in this suit. - He cannot be allowed to trifle with the court in that way. When he fails to object at the proper time, it must be considered that he waives his objection. The court, therefore, in this respect committed no error upon the issues presented to the court, and the facts found; the conclusions of law, and the judgment, were undoubtedly correct.

Judgment: Ex-oessive. The third assignment of error is: “ That the said judgment is excessive, and is not prayed for in said petition.” This is true. The plaintiffs’ petition shows that they were entitled to only $299.08, and they ask judgment for only $299.00, without claiming any interest, while the district court entered a judgment for $312.28. This was error. Powell v. Horton, 5 O., 260.

Interest : Must be claimed, If the plaintiffs had claimed interest, they would not have been entitled to a'judgment for as much as the court allowed them. But they did not claim any interest, and hence they cannot recover any interest. Gen. Stat., 647, § 87.

Judgment Modified: The judgment in this case will not be reversed for gaid error, but will be modified so as to give the plaintiffs judgment against the defendant for $299.00, and the costs of suit in the court below. [Ed. Ass'n. v. Hitchcock, 4 Kas., 36.] The costs in this court will be equally divided between the plaintiff in error and the defendants in error. Gen. Stat., 741, § 562.

Error ; Assignmenta oí. The fourth and last assignment of error is: that the judgment was given for the plaintiffs, when it should have been given for the defendant. Such a general and indefinite assignment of error can seldom be considered or regarded by this court. [Brown v. Rhodes, 1 Kas., 359.] But in this case we can regard it far enough to say that under the pleadings and the findings of the court below, the judgment was undoubtedly for the proper persons and against proper persons, and therefore the court did not err.

This cause will be remanded, with the order that the judgment of the district court be modified so as to conform with this opinion.

All the justices concurring.