Baden v. Bertensraw, 13,290

CourtUnited States State Supreme Court of Kansas
Writing for the CourtGREENE, J.:
Citation68 Kan. 32,74 P. 639
Decision Date12 December 1903
Docket Number13,290
PartiesHENRY BADEN v. JOHN BERTENSRAW, as Trustee, etc

74 P. 639

68 Kan. 32

HENRY BADEN
v.
JOHN BERTENSRAW, as Trustee, etc

No. 13,290

Supreme Court of Kansas

December 12, 1903


Decided July, 1903.

Error from Montgomery district court; THOMAS J. FLANNELLY, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, SUPREME COURT -- Assignments of Error. Rulings of a trial court not assigned as error in the petition in error will not be considered by this court.

2. PRACTICE, DISTRICT COURT -- General Objection to Evidence Waived. An objection to the introduction of any evidence under the petition because of the omission of the allegation of certain material facts is waived if evidence be introduced on the trial to prove such facts without objection.

3. BANKRUPTCY -- Preferential Payment. An action by a trustee in bankruptcy to recover an alleged preferential payment made by the insolvent is not an action to recover on the ground of fraud.

4. BANKRUPTCY -- Recovery of Preferential Payment --Conditions Precedent. Before a trustee in bankruptcy can recover an alleged preferential payment to a creditor he must prove that the payment was made within the time prohibited by the statute; that it was intended as a preference; that the person receiving it had reasonable ground to believe that it was so intended; and that the effect of such payment was to enable such creditor to obtain a greater percentage of his debt than other creditors of the same class.

J. B. & W. E. Ziegler, for plaintiff in error.

F. J. Fritch, for defendant in error.

GREENE, J. All the Justices concurring.

OPINION

[68 Kan. 33] GREENE, J.:

John Bertenshaw, as trustee in bankruptcy of the firm of Ridgeway & Co., brought this action against Henry Baden to recover the sum of $ 183.50 alleged to have been paid to him as a preferential payment within four months before the filing of the petition in bankruptcy. Judgment was for plaintiff.

Many errors are assigned and argued by plaintiff in error, some of which are not assigned in the petition in error. It is argued that the court erred in overruling the demurrer to the petition. This is not assigned in the petition in error and therefore will not be considered. (National Bank v. Jaffray, 41 Kan. 691, 19 P. 626; Clark v. Schnur, 40 id. 72, 19 P. 327; Carson v. Funk, 27 id. 524.)

It is contended that the court erred in not sustaining the objection to the introduction of evidence under the petition for the reasons that it was not alleged that a demand had been made on the defendant prior to commencing action, or that any claims were proved or allowed against the estate, or that the money paid to Baden was necessary to pay any of the debts which had been proved or allowed against the estate. If it was necessary for plaintiff to make these allegations, the defendant has waived any questions arising from such omission that he might have presented here by [68 Kan. 34] permitting the plaintiff, without objection, to introduce evidence tending to prove such facts.

The petition shows that more than two years intervened between the time of the alleged preferential payment and...

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10 practice notes
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • March 9, 1908
    ...Fry v. Bennett, 7 Abb. Pr., 352; 16 How. Pr., 385; Piper v. Van Buren, 27 Hun, 384; Patterson v. McCunn, 38 Hun, 531; Baden v. Bertenshaw, 68 Kan. 32; James v. Higginbotham, 60 Neb. 203; Painter & Co., 7 Ind.App. 642; Cannon v. Cannon, 66 Tex. 682; Evans v. Printing Co., 4 Tex. Civ. App. 32......
  • Rodolf v. First Nat. Bank of Tulsa, Case Number: 1389
    • United States
    • Supreme Court of Oklahoma
    • January 9, 1912
    ...debts than other debtors of the same class had received. West v. Bank of Lahoma, 16 Okla. 328, 85 P. 469; Baden v. Bertenshaw, Trustee, 68 Kan. 32, 74 P. 639. The averments in a pleading must be clear and unequivocal. Material facts must be alleged with certainty. Courts cannot indulge infe......
  • Noll v. Graham, 31357.
    • United States
    • United States State Supreme Court of Kansas
    • December 9, 1933
    ...assignment of error is directed against the allowance of the furnace company's lien, and it need not be reviewed. See Baden v. Bertenshaw, 68 Kan. 32, 74 P. 639; also, rule 5 of this court. As the claimed error presents substantially the same question as to the others named, it will, howeve......
  • Custer v. Royse, 21,689
    • United States
    • United States State Supreme Court of Kansas
    • March 8, 1919
    ...40 Kan. 521, 20 P. 228; Feidler v. Motz, 42 Kan. 519, 22 P. 561; Smelting Co. v. Osborne, 66 Kan. 393, 395, 71 P. 838; Baden v. Bertenshaw, 68 Kan. 32, 74 P. 639.) In Hartwell v. Manufacturing Co., 78 Kan. 259, 97 P. 432, it was said: "Although no facts were pleaded in the petition or reply......
  • Request a trial to view additional results
10 cases
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • March 9, 1908
    ...Fry v. Bennett, 7 Abb. Pr., 352; 16 How. Pr., 385; Piper v. Van Buren, 27 Hun, 384; Patterson v. McCunn, 38 Hun, 531; Baden v. Bertenshaw, 68 Kan. 32; James v. Higginbotham, 60 Neb. 203; Painter & Co., 7 Ind.App. 642; Cannon v. Cannon, 66 Tex. 682; Evans v. Printing Co., 4 Tex. Civ. App. 32......
  • Rodolf v. First Nat. Bank of Tulsa, Case Number: 1389
    • United States
    • Supreme Court of Oklahoma
    • January 9, 1912
    ...debts than other debtors of the same class had received. West v. Bank of Lahoma, 16 Okla. 328, 85 P. 469; Baden v. Bertenshaw, Trustee, 68 Kan. 32, 74 P. 639. The averments in a pleading must be clear and unequivocal. Material facts must be alleged with certainty. Courts cannot indulge infe......
  • Noll v. Graham, 31357.
    • United States
    • United States State Supreme Court of Kansas
    • December 9, 1933
    ...assignment of error is directed against the allowance of the furnace company's lien, and it need not be reviewed. See Baden v. Bertenshaw, 68 Kan. 32, 74 P. 639; also, rule 5 of this court. As the claimed error presents substantially the same question as to the others named, it will, howeve......
  • Custer v. Royse, 21,689
    • United States
    • United States State Supreme Court of Kansas
    • March 8, 1919
    ...40 Kan. 521, 20 P. 228; Feidler v. Motz, 42 Kan. 519, 22 P. 561; Smelting Co. v. Osborne, 66 Kan. 393, 395, 71 P. 838; Baden v. Bertenshaw, 68 Kan. 32, 74 P. 639.) In Hartwell v. Manufacturing Co., 78 Kan. 259, 97 P. 432, it was said: "Although no facts were pleaded in the petition or reply......
  • Request a trial to view additional results

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