Hennerich v. Snyder , 101 Kan. 745 ( 1917 )

The opinion of the court was delivered by

Marshall, J.:

The defendants have filed an application for a rehearing and insist that the court did not decide all the questions involved in their appeal. They argue that contracts affecting homestead rights can not be altered without the consent of both husband and wife. After reexamining the abstracts and briefs, the court is satisfied with the opinion reported in Hennerich v. Snyder, ante, p. 403.

There are reasons for not considering the homestead question other than the reason given in the former opinion. The pleadings did not show that the real property in controversy was the homestead of the defendants, nor that defendant George B. Snyder had not consented to any change in the contract by which he and his wife agreed to sell the property. If those matters were a good defense they should have been pleaded. They were not pleaded, and it does not appear that the attention of the trial court was called to these facts, although it did appear in the evidence that the property was occupied as the defendants’ homestead.

This- court has often declared that it will not consider matters which have not first been presented to the trial court. (Kelly v. Insurance Co., ante, p. 91.)

A rehearing is denied.