McGrew v. Armstrong , 5 Kan. 284 ( 1870 )

By the Court,

Safford, J.

Two grounds of error are insisted upon in this case which requires notice; and First, That the finding and judgment of the court below were not sustained by and are contrary to the evidence in the case.

It will be observed that the case made, although it sets forth a large amount of the testimony which was produced upon the trial, which was by the court without the intervention of a jury, does not purport to contain the whole of it.

sufficient Eec. Such being the fact, it will be only necessary †0 remark relative to the point stated, that this court will not, as indeed it could not, attempt to pass upon the weight of the evidence and to decide on which side of the case there was a preponderance; nor would it be possible for us, even if we found upon looking at the evidence which is here that something was wanting in order to sustain the judgment, to say that it ought to be reversed for that reason, inasmuch as that which may appear to be wanting might have been supplied by evidence which is not set out, and yet which might have been produced to the court below.

In such a condition of the case the presumptions must be in favor of the correctness of the finding and judgment.

Trial : Intro-auction of ev. Second, It is claimed that the court erred in permitting the defendant to testify as to matter of defense which was not specially pleaded in his answer, and which was apparently contradictory to matter which was set up as a defense.

The answer contained two counts: First, a general denial, and second a special plea. It will not be denied that if the answer had consisted only of the general denial, the evidence complained of would have been proper, tending, as it did, to negative the allegations of the petition, and thus to sustain the issue made up between the parties by this plea.

Ought the defendant, then, to have been deprived of the benefit of such testimony by reason of the seeming discrepancy or contradiction between it and the second plea?

So far as this case is concerned, at least, we are of the opinion that there was no error upon the point in question. The applicability of the testimony to the issues made by the petition and the first count of the answer, was such that the court was not in error in permitting it to be presented.

The judgment of the district court is affirmed.

All the justices concurring.