Greer v. Adams

The opinion of the court was delivered by

Kinsman, C. J.:

The first error complained of in this case is, that the petition does not state facts sufficient to constitute a cause of action. The cause of action is founded on a note payable in State warrants, on which several payments were indorsed. The date of the last payment, as indorsed, having been made, more than three years before the action was commenced, the petition was defective in not stating a present existing right of action; (Zane v. Zane, 5 Kas., 134.) The cause was regularly tried below, on the pleadings and evidence; and no question was raised by demurrer, answer,' or by objection to tbe evidence, or on tbe motion for a new trial, that the petition was not a good one. The question is now made for the first time, in this court.

i. a mal on the menu» in disellopfpnny from urging RntVnsls"mdept^eme court, The code of 1868, § 91, declares that if no objection be taken to the petition, either by demurrer or answer, the defendant shall be-deemed to have waived # the same, except the two questions of juris- . _ . . diction, and that the petition does not state facts sufficient to constitute a cause of action. It would properly be inferred from this language, that these two defects were not waived by a neglect to demur or answer, and to this effect we decided in the case of Zane v. Zane. And we are willing to hold that these defects may be for the first time taken advantage of in this court, in proper and suitable cases. A judgment rendered without jurisdiction is void; and a judgment rendered upon a petition not alleging any cause, or pretense of a cause of action is void. Such judgment should be set aside, on motion made in the court which rendered the decision; and a refusal to do so is error. But it is not every defect in the statement of facts which renders illegal the judgment rendered, or would render a verdict in favor of the plaintiff contrary to law, and so, under the provision of the code, constitute cause for setting it aside, and thus arresting the judgment. When only the statement of the plaintiff’s cause of action is inaccurate, or defective, the defect was at common law cured by a general verdict in his favor. (10 Ohio St., 572.)

It is difficult, perhaps impossible, to lay down a rule which shall determine with accuracy and precision what defects will be considered fatal when presented to this court for the first time. We will content ourselves with deciding this case. Had the defendant demurred, or set up the statutory bar by answer, or by objecting to the testimony on this ground, then the plaintiff might have amended his petition by correcting the dates of the payments if there was error therein ; or by alleging a promise in writing to pay if any such existed; or by alleging such an absence from the State as would bring the ease within the saving clauses of the code, if such were the facts, and the whole cause been tried upon its merits. By his silence upon this point the plaintiff in error has taken his chances of a trial upon other issues, and having failed, asks this court to' give him another trial upon all the issues raised, because he did not see fit to present this question to the court below. Such a ruling on the jjart of this court would be subversive of the objects of the code, and in conflict with its liberal provisions.

The cause of. action is fully and perfectly stated in the petition, and of’itself sufficient to sustain the judgment; but at the same time other facts are shown, which may or may not be a perfect defense. On their face they appear to be so. The defendant does not choose to avail himself of that defense in the court below, but tries his case on other issues. It is too late to raise the question in this court. It would give the defendant an unfair advantage of a second trial, on the other issues. If the statute had really barred the action, he has lost that defense by his own neglect,'and cannot justly complain in this court. To this effect the Supreme court of Ohio deckled, in Sturges v. Burton, 8 Ohio St., 215.

2. impropereviMeTOVh<™ H. The next alleged error is the admission of certain testimony. The testimony seems to us to have been proper, as tending to show that the parties themselves had agreed upon the value of the warrants, at the time the contract was broken; and this agreement had a tendency to prove the value of the warrants at that time, if it was at all necessary to establish that fact. But whether admissible on this ground or not, it did not in anywise prejudice the rights of the plaintiff in error, for it tended to establish a measure of recovery more favorable to him than the law would have applied to the case, as it is disclosed in the record.

Reporter’s Note. — In Zane v. Zane, 5 Kas., 184, the defendant appeared at the trial, and, though not filing a “ demurrer,” nor an u answer,” objected that “ the petition did not state facts sufficient to constitute a cause of action,” because “it shows that plaintiff’s claim.is barred by the statute of limitations.” This objection being overruled, he objected to the rendering of any judgment, for the same reason ; and after judgment he moved for a new trial. The Supreme Court held that he had not waived his right to object to the sufficiency of the petition “ by failing to answeror demur,” and that by his several objections and motions, in the district court, “he properly raised the question of the bar of the statute of limitation.” In this case, (Greer v. Adams,) Greer answered, setting up two defenses to the merits, on which the action was twice tried — the statutory bar not being-raised until the case reached this court.

3. Party cannot complain of errors in ws .III. Again it is claimed that the judgment was far too much. The judgment was made up by calculating the warrants at ninety-five cents on the dollar, " ' an(} £pe testimony fully sustains such a basis. As the record shows the case, the plaintiff was entitled to recover the full value of dollar for dollar. The court erred against him, and he is not complaining.

These are all the causes for which it is claimed that a new trial should be granted, and having found no error in them, the judgment is affirmed.

All the justices concurring.