Livingston v. Lewis

Citations

• 109 Kan. 298
• 198 P. 952
• 1921 Kan. LEXIS 130

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Allegations of Partnership — Unverified Answer — Existence of- Partnership Stands Admitted. Under section 110 of the civil, code, which provides that allegations of the existence of a partnership shall be taken as true unless the denial thereof is verified by affidavit, when a petition alleges the existence of a partnership and an accounting is demanded between the alleged partners, an unverified answer of the defendant does not raise an issue as to the existence of the partnership, and its existence stands admitted; but. a plaintiff can only take advantage of this rule of the code by a timely objection, specifically pointing out to the court the want of verification to defendant’s answer; and if plaintiff replies to the unverified answer and goes to trial on the issue of fact, and adduces his evidence thereon, and makes no showing that he was taken by surprise by the ruling of the court and that he was unprepared to produce evidence on the issue which should have been held to be conceded by the unverified answer, he cannot base reversible error on the ground that the trial court tried out and determined the question of the existence of the alleged partnership on the evidence presented for its determination.</p> <p>2. Same — Objections to Pleadings Should Be Clear and Precise. An objection to the sufficiency of a pleading should be timely made, and it should be so clear and precise that the trial court can readily discern its significance; and if the objection lacks in precision and the court is misled thereby, no prejudicial error can be based thereon, following Emery v. Bennett, 97 Kan. 490, 492, 155 Pac. 1075.</p> <p>3. Same — Joint Newspaper Adventure — Evidence — Findings — Parties Entitled to Accounting. The evidence and findings of the trial court examined, and held to establish as a matter of law that the plaintiff and defendants were engaged in a joint adventure to take over a newspaper and printing plant and