Watson v. Watson

Citations

• 110 Kan. 326
• 203 P. 714
• 1922 Kan. LEXIS 44

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice — Amendment of Pleading to Conform to Proof. The doctrine of amendment to conform pleading to proof is that a material matter, which might have been pleaded but was not, has been litigated without objection, as though it had been pleaded; the proposal to amend is a proposal to state in form of pleading facts which already appear in form of proof; and an order of the court granting leave to amend is equivalent to a judicial finding of the facts involved.</p> <p>2. Same — Homestead Rights Adjudicated in Former Trial. The court permitted a pleading to be amended to conform to proof establishing the fact that a described body of land containing twenty-three acres was the pleader’s homestead. No objection was made to the amendment on the ground part of the tract was not occupied as a homestead. Held, extent of the homestead was adjudicated.</p> <p>3. Same — Defense of Claim on One Ground Defeated — Renewal of Litigation on Another Ground Not Permissible — Obedience to Mandate of Supreme Court. A' litigant may not defend against a claim on one ground and, when finally defeated, renew the litigation by proposing another ground. In such a case, adjudication in favor of the claim adjudicates everything which might have been urged against the claim in whole or in part. These rules constitute limitation on authority of a district court to entertain supplementary proceedings after receiving a mandate directing entry of a specified judgment.</p> <p>4. Same — Application of Preceding Principles. The principles just stated applied to a proceeding in the district court to determine extent of the homestead referred to, after receiving a mandate from this court directing judgment allowing the plaintiff to occupy the tract of land as her homestead.</p>