Minneapolis Thrashing-machine Co. v. Currey

Citations

• 75 Kan. 365
• 89 P. 688
• 1907 Kan. LEXIS 65

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>T. Practice, District Court — Amendment of Answer —■ De- , murrer — Ruling Deferred — Withdrawal of Defense. When several defenses are stated in an answer, and the court permits one of them to be amended, over the objection of the plaintiff, after the trial has commenced, and the plaintiff immediately demurs to the answer as amended,, and requests a ruling thereon before the trial proceeds, which is denied, and the court while holding its decision in abeyance compels the parties to proceed with the trial, this court will not consider whether the court committed error or not in these rulings and orders, when it appears that the defense objected to was withdrawn from the consideration of the jury before the conclusion of the trial.</p> <p>2. --- Amendment of Answer to Conform to Proof. Plaintiff commenced an action to recover judgment on three promissory notes. The defendants pleaded, in substance, a failure of consideration, and asked that the notes be canceled. After the evidence was closed defendants were permitted to amend their answer by an averment that six other promissory notes were given with those mentioned in the petition, for the same purpose and as a part of the same transaction, and praying that they be canceled also. Held, it was not error to permit such amendment, it clearly appearing from the undisputed evidence given in the case that such averments were true.</p> <p>3. -Decree Canceling Notes in Plaintiff’s Possession — ■ Judgment for Tlieir Amount — •Satisfaction on Delivery. Where a-decree is entered in favor of a defendant for the cancelation of promissory nptes in the possession of the plaintiff the court, as a means to secure compliance with the decree, may properly render a judgment against the plaintiff for the amount of the notes canceled, providing therein that the judgment shall be satisfied upon delivery of the notes to the clerk of the court for cancelation within a time specified.</p> <p>4. - Joinder of D