Blackwood v. Shaffer

• Decision Date: 03 July 1890
• Parties: THOMAS BLACKWOOD v. J. W. SHAFFER
• Court: Kansas Supreme Court

24 P. 423

44 Kan. 273

THOMAS BLACKWOOD v. J. W. SHAFFER

Supreme Court of Kansas

July 3, 1890

Error from Clay District Court.

THE opinion states the case.

Judgment affirmed.

C. M Anthony, for plaintiff in error.

Harkness & Godard, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Clay county in March, 1886, by J. W. Shaffer against Thomas Blackwood and S. M. Hollis, to recover for alleged breaches of certain injunction bonds. On April 14, 1886, the defendants filed their answer, which, omitting title and signature, reads as follows:

"1. The defendants deny each and every allegation contained in plaintiff's petition.

"2. For further answer, defendants say that the defendant Hollis is neither jointly nor severally liable on the several undertakings sued upon, as the same were not nor was either of them executed by him.

"3. The defendants aver that there never has been a final judgment or adjudication that said temporary injunction ought not to have been granted, said cause still being undecided and now pending in the supreme court of the state of Kansas."

On May 3, 1886, the plaintiff demurred to the third paragraph of the foregoing answer, upon the ground that it did not state facts sufficient to constitute any defense to the plaintiff's action. On May 8, 1886, this demurrer was heard by the court, and sustained. The plaintiff then dismissed his action as to Hollis. The case was then continued from time to time as against Blackwood, until May 10, 1888, when he moved the court to dismiss the same upon the ground that the action had been brought prematurely. This motion was overruled. On May 11, 1888, the case was tried before the court and a jury, and the jury rendered a verdict in favor of the plaintiff and against the defendant Blackwood, and assessed the damages at $ 611.33. On May 14, 1888, the defendant filed his motion for a new trial upon the following grounds, to wit:

"1. Misconduct of the jury.

"2. Excessive damages, appearing to have been given under the influence of passion or prejudice.

"3. Error in the assessment of damages and amount of recovery, the same being too large.

"4. The verdict is not sustained by sufficient evidence, and is contrary to law.

"5. Error of law occurring at the trial, and excepted to by the defendant at the time. Affidavits and other evidence will be used at the hearing of this motion."

On May 21, 1888, this motion for a new trial was heard and overruled, and on the same day judgment was rendered in favor of the plaintiff and against the defendant, Blackwood, in accordance with the verdict of the jury. On July 6, 1888, the defendant Blackwood, as plaintiff in error, brought the case to this court for review. The errors alleged in the petition in error are as follows:

"1. The court erred in sustaining the plaintiff's demurrer to the 3d paragraph of defendant's answer.

"2. In refusing to sustain said demurrer to plaintiff's petition at the request of defendant.

"3. In rendering judgment for the aggregate amounts of the bonds sued on.

"4. In refusing to grant a new trial.

"5. The judgment was given for the plaintiff, J. W. Shaffer, when it should have been for the defendant, Thomas Blackwood, said suit having been instituted by J. W. Shaffer before any right of action had accrued to him."

The plaintiff in error, however, in his brief seems to abandon all the alleged errors except those relating to the ruling of the court below on the demurrer, and certainly the other alleged errors are not tenable. But are those relating to the demurrer tenable? It is alleged in effect in the third paragraph of the defendant's answer, that the action in which the injunction bonds were given was still pending in the supreme court when the answer was filed in this case, but there is no allegation anywhere that the action in which the injunction bonds were given was pending in the supreme court or elsewhere when this present action was commenced or that any bond or undertaking was ever given in the action in which the injunction bonds were given, for the purpose of staying the proceedings in that action in the district court while the action was pending in the supreme court. Nor is there any allegation anywhere showing what was sought to be reviewed in the supreme court in that action. ...