Estes v. Edgar Zinc Co.

Citations

• 97 Kan. 774
• 156 P. 758
• 1916 Kan. LEXIS 396

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Death of Plaintiff — Revived in Name of Administratrix — Sufficient Amendment to Petition. While the action was pending the plaintiff died. The action was revived in the name of his administratrix, who by leave of court filed an amendment to the petition for the purpose of showing her. authority to prosecute the action. The amendment stated that the plaintiff died intestate, a resident of a certain county, that by the consideration of the probate court of that county she was duly appointed administratrix of his estate, that she had duly qualified as such administratrix, and that she was the duly qualified and acting administratrix of the plaintiff. Held, the amendment was sufficient against an objection to the introduction of evidence.</p> <p>2. Practice, Supreme Court — Second Review of Case — Issues Determined on First Appeal. The plaintiff recovered judgment against the defendant. On appeal to this court the judgment was reversed on a specific ground and the cause was remanded for a new trial. The plaintiff again recovered and the defendant again appeals. Held, the defendant is not entitled as a matter of right to urge defects in the proceedings which might have been presented on the former appeal but which were not, or matters which were presented and decided on the former appeal'.</p> <p>3. Same. To prevent the possibility of a miscarriage of justice the court has examined all the assignments of error relating to matters which were or which might have been decided on the former appeal and is satisfied that the defendant has not been prejudiced in any of its substantial rights.</p> <p>4. Trial — Refusal to Submit Special Questions Asked — No Error. The refusal of the trial court to submit to the jury certain special findings of fact held to be without prejudice in view of other findings of fact which were returned.</p>