Kerr v. Coberly

Citations

• 81 Kan. 376
• 105 P. 520
• 1909 Kan. LEXIS 373

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Costs. An action was commenced before a justice of the peace in which the plaintiff claimed judgment upon each of two separate and distinct causes of action, growing out of two separate and distinct transactions, one for $30 and the other for $195. The action was commenced August 2, 1907; the claims were each due August 1, -1907. ' When the case was set for trial, August 9, 1907, the defendant by answer admitted liability for the $30 and paid 'the money into court, which the plaintiff did not accept. The defendant pleaded payment as to the other item, and a trial was had thereon, in which the defendant was defeated. An appeal was taken to the district court, where a trial was had upon the same item only, and the plaintiff was defeated. By direction of the court the jury returned a verdict in favor of the plaintiff for the uncontested item of $30, with interest from August 1, 1907. The interest on the $30 from August 1 to August 9 amounted to less than 5 cents, and it was not included in the payment. The plaintiff insisted that because of this difference between the payment and the recovery all the costs should be taxed to the defendant. The court rendered judgment on this item for the plaintiff, including interest from August 1, 1907, according to the verdict, and taxed the costs which accrued prior to August 9, when the $30 was paid into court, to' the defendant and the remainder to the plaintiff. Held, not error.</p> <p>2. -Instructions. Where the evidence upon a material fact is circumstantial and conflicting it is not error for the court to refuse an instruction which selects part of such evidence and gives it undue prominence and importance, to the exclusion of other evidence equally material.</p>