Butterfield v. Butterfield

• Decision Date: 12 June 1916
• Citation: Butterfield v. Butterfield, 197 S.W. 374, 195 Mo. App. 37 (Kan. App. 1916)
• Parties: FLORA BELLE BUTTERFIELD, Respondent, v. ROBERT JAMES BUTTERFIELD, Appellant
• Court: Kansas Court of Appeals

197 S.W. 374

195 Mo.App. 37

FLORA BELLE BUTTERFIELD, Respondent, v. ROBERT JAMES BUTTERFIELD, Appellant

Court of Appeals of Missouri, Kansas City

June 12, 1916

195 Mo.App. 37 at 39.

Original Opinion of June 12, 1916, Reported at: 195 Mo.App. 37.

Motion overruled.

OPINION

ON MOTION FOR REHEARING.

Per Curiam.

We stated in the opinion that plaintiff moved to strike out that part of the answer setting up that plaintiff and defendant were husband and wife, leaving nothing in the answer save a general denial. It was error on the part of the trial court to strike out that part of the answer, and we stated that the error could be preserved without being mentioned in the motion for new trial. But whether that was a correct statement, or not, cannot in the least affect plaintiff's rights, or the result which we reached. For we proceeded to state, that though the fact that plaintiff and defendant were husband and wife at the time the assault and battery occurred, was stricken out on plaintiff's motion, yet proof of that fact was allowed under the general denial. Plaintiff will not be heard to say that such evidence was improperly received because not pleaded, for that would allow her to take advantage of an error she asked and caused the court to commit. Besides, while the evidence was objected to by plaintiff, that was not one of the reasons assigned unless we say that one of the reasons, viz., that such question "is not in issue in this case" refers to such defense not being pleaded in the answer. If we concede that that objection covered the point, we need only say that it was in issue until plaintiff wrongfully asked the court to commit the error by striking it out. Plaintiff's position amounts to this, that she can wrongfully strike a good defense out of an answer and then object to that defense being proven because it...