Davis v. Wilson , 11 Kan. 74 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

This is an action to reverse a judgment of the district court of Cowley county. Plaintiff in error was defendant below, and appears from the record to have objected to every proceeding in the district court. Finding it recorded in the earliest law book that “in the multitude of counselers there is safety,” he seems to have thought that in a multitude of exceptions there is hope. His main objection seems to have been to the fact of a trial, as between the time the case was called for trial and the rendition of the verdict he made eight applications for postponement, or continuance. We shall not attempt to discuss all the points made in the brief, but will notice the more important. And the first question to be noticed is an objection to the judge who tried the case. The regular district judge had left before all the cases on the docket had been reached for trial, and a judge pro tem. had been duly elected. By him all the cases but this had been disposed of. He was one of the counsel in this. Thereupon the parties not being able to agree, the members of the bar present elected another attorney judge pro tem. for this case. To this plaintiff in error objected. This objection was not well taken. He made no application for a change of venue, so as to bring himself within the rule laid down in K. P. Rly. Co. v. Reynolds, 8 Kas., 623. Defendant in error was entitled to a trial at that term. If the regular judge was absent a judge pro tem. was proper, and the method procured to obtain one was the method prescribed by the statute.

II. The case was originally brought before a justice of the peace, and taken on appeal to the district court. And plaintiff in error insists that he had a right to have the case tried upon the original papers. This may all be true; but the original papers were lost, and the parties were unable to agree as to their contents, so the court properly directed each party to prepare and file new pleadings.

III. After the new petition had been prepared and filed, and during the progress of the trial; the plaintiff by leave of the court twice amended his petition. After the filing of the petition, and after each amendment, defendant insisted upon time to answer, but was required to plead forthwith. Several applications were made for a continuance, one being made made upon affidavit. These, and kindred matters, are committed largely to the discretion of the trial court. It must appear that that discretion has been abused before a reversal can be ordered. Little or none of the testimony given on the trial is preserved in the record; and though it is unusual to permit a pleading to be twice amended during a trial without imposing any terms, of costs, or continuance, still, considering the nature of the case, the nature of the amendments, and the amount in controversy, we do not feel warranted in holding that there was any such abuse of discretion as would justify us in reversing the judgment.

IV. It is claimed that there was error in overruling the demurrer to the petition. We think not. The petition alleged in substance that the cattle of defendant trespassed upon the lands and crops of plaintiff in the county, and destroyed growing corn belonging to plaintiff, whereby he sustained damage in the sum of twenty dollars. We think this petition good as against any objection that could be raised on dumurrer. Larkin v. Taylor, 5 Kas., 434.

V. After the jury had been sworn, and the case partially tried, defendant moved for a change of venue, and filed an affidavit charging bias and prejudice on the part of the judge. This application was too late. A party cannot, after a case has been partially tried before a jury, prevent a verdict by swearing that the judge is prejudiced against him.

VI. So far as any questions are made upon the admission and rejection of testimony, it is enough to say that it is impossible to determine its relevancy or materiality without the other testimony in the case. The testimony rejected, though competent, may have been, in the light of the facts and circumstances already in evidence, wholly irrelevant, and therefore properly rejected. Certain testimony was also admitted over the objection of the defendant. ' No ground of objection was stated, and ordinarily it will not be deemed error to disregard any such general objection. Walker v. Armstrong, 2 Kas., 199; Wilson v. Fuller, 9 Kas., 176; K. P. Rly. Co. v. Pointer, 9 Kas., 620.

VII. The court it is claimed erred in submitting a question of law to the jury for decision. Of course if he did this, it was error. But if the jury decided that question correctly, how did the defendant suffer prejudice, and wherein were his substantial rights injured? The State v. Lewis, 10 Kas., 157. We cannot say that they did or did not apply the law to the facts correctly, until we know what the facts were, and of them we are in ignorance.

VIII. The court gave some instructions to the jury which were not in writing, and to this defendant excepted, or at least claims to have excepted. It is very doubtful whether the language of the record shows that any exception was taken to the manner of giving the instructions. It seems rather to indicate an exception to the instructions themselves. After reciting that the court refused an instruction, to which the defendant excepted, the record proceeds as follows: “ The court proceeded further to instruct the jury, which said instructions were not in writing, but oral, to all of which the defendant then and there excepted.” But it is unnecessary to decide this question, for conceding that the exception goes to the fact that the instructions were not in writing, still we think it cannot be sustained. The code provides that the court shall give instructions to the jury, “which shall be in writing, and be numbered and signed by the judge, if required by either partyNow it does not appear that defendant made any request prior to the commencement of the charge, to have it reduced to writing, nor indeed at any time; ‘but after the oral instructions had been given, took his exceptions. If a party desires written instructions he must make his request before the instructions are given.' The court may charge orally unless written instructions are demanded. A party cannot, after an act which may at the time it is done be properly so done, by simply excepting to the act turn it into an error. An exception merely enables a party to avail himself of a previous error. It does not make the error.

IX. The only remaining point we deem it necessary to notice, is the claim that the herd law of 1872, (Laws 1872, p. 384,) is unconstitutional, but if not, that the proceedings under it had by the commissioners of Cowley county, were void for want of conformity to its provisions. We do not think that this question is fairly before us on this record. Under the petition the plaintiff might, and, for all there is before us, did, prove a willful or wanton trespass, in which case the question of fence, or fence law would cut no figure. Such a trespass is “not intended to be protected by.our fence laws.” Larkin v. Taylor, 5 Kas., 446. The judgment of the district court will be affirmed.

All the Justices concurring.