Cogshall v. Spurry

CourtUnited States State Supreme Court of Kansas
Writing for the CourtVALENTINE, J.:
Citation47 Kan. 448,28 P. 154
Decision Date05 December 1891
PartiesW. H. COGSHALL et al. v. S. W. SPURRY

28 P. 154

47 Kan. 448

W. H. COGSHALL et al.
v.
S. W. SPURRY

Supreme Court of Kansas

December 5, 1891


Error from Crawford District Court.

THE case is stated in the opinion.

Judgment affirmed.

W. R. Cowley, for plaintiffs in error.

John T. Voss, for defendant in error.

VALENTINE, J. All the Justices concurring.

OPINION

VALENTINE, J.:

The assignments of error in this case are as follows:

"1. The said court erred in the instructions given to the jury on the trial of the said action.

"2. The court erred in admitting evidence in the trial of said action.

"3. The verdict was contrary to the evidence.

"4. The said judgment was given for the said S.W. Spurry when it ought to have been given for these plaintiffs."

It will be seen that nothing is said in the assignments of error with regard to a motion for a new trial. There was a motion for a new trial, however, made and filed in the court below on April 7, 1888, and overruled on April 20, 1888. The grounds for the motion are as follows:

"1. The verdict is contrary to and against the evidence.

[47 Kan. 449] "2. The verdict is contrary to and against the law.

"3. Error upon the part of the court in the admission of testimony, to which the plaintiff excepted at the time."

Nothing is said in this motion with respect to the instructions of the court to the jury. Instructions, however, were given; and while we have 17 pages of them in the record, yet the record does not show that it contains all. On the same day on which the motion for the new trial was overruled, judgment was rendered in favor of the defendant, S.W. Spurry, and against the plaintiffs, W. H. Cogshall and George W. Pye, partners as W. H. Cogshall & Co., for costs of suit; and on April 16, 1889, the plaintiffs, as plaintiffs in error, brought the case to this court for review.

On October 8, 1891, the plaintiffs in error asked leave of this court to amend their petition [28 P. 155] in error so as to make it allege for error the overruling of their motion for a new trial, but the court overruled the motion, and then the case was submitted to the court for final decision upon its merits upon the petition in error as it was and the record and the briefs of counsel. The motion of the plaintiffs in error for leave to amend their petition in error was overruled upon the ground that it was made too late. Under the statutes of this state, (Civil Code, § 556,) no proceeding in error can be...

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11 practice notes
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • 9 Marzo 1908
    ...97 N.W. 831; Deuch v. Seaside Lodge, 26 Ore. 385; 2 Ency Pl. & Pr., 239-245; Crawford v. Kansas City, 45 Kan. 474; Cogshall v. Sperry, 47 Kan. 448; 28 P. 154; Nowland v. Horace, 8 Kan.App. 722; 54 P. 919; Brewer v. Moyer (Kan.), 84 P. 719; Smetters v. Ramey, 14 Ohio St. 287; Burke v. Taylor......
  • Northwestern Nat. Ins. Co. of Milwaukee, Wis. v. Averill
    • United States
    • Supreme Court of Oregon
    • 26 Marzo 1935
    ...allowed for bringing error proceedings, and under similar Code provisions, the following cases to the same effect; Cogshall v. Spurry, 47 Kan. 448, 28 P. 154; Bruner v. Nordmeyer, 48 Okl. 415, 150 P. 159; Haynes v. Smith, 29 Okl. 703, 119 P. 246." These two are the only decisions, apart fro......
  • The Liverpool & London & Globe Insurance Company v. Hall
    • United States
    • Court of Appeals of Kansas
    • 1 Mayo 1895
    ...the original petition in error, being as to a mere matter of form, it was permissible at any time before the hearing. (Cogshall v. Spurry, 47 Kan. 448, 28 P. 154.) The objection to the manner in which exceptions were taken to the ruling of the court upon defendant's demurrer to the plaintif......
  • The Coffeyville Gas Company v. Dooley, 14,466
    • United States
    • United States State Supreme Court of Kansas
    • 10 Febrero 1906
    ...P. 626; Carson v. Funk, 27 Kan. 524; Clark v. Schnur, 40 Kan. 72, 19 P. 327; Binns v. Adams, 54 Kan. 615, 38 P. 792; Cogshall v. Spurry, 47 Kan. 448, 28 P. 154; City of McPherson v. Manning, 43 Kan. 129, 23 P. 109.) The errors assigned raise questions arising upon the trial and cannot be co......
  • Request a trial to view additional results
11 cases
  • Riordan v. Horton
    • United States
    • United States State Supreme Court of Wyoming
    • 9 Marzo 1908
    ...97 N.W. 831; Deuch v. Seaside Lodge, 26 Ore. 385; 2 Ency Pl. & Pr., 239-245; Crawford v. Kansas City, 45 Kan. 474; Cogshall v. Sperry, 47 Kan. 448; 28 P. 154; Nowland v. Horace, 8 Kan.App. 722; 54 P. 919; Brewer v. Moyer (Kan.), 84 P. 719; Smetters v. Ramey, 14 Ohio St. 287; Burke v. Taylor......
  • Northwestern Nat. Ins. Co. of Milwaukee, Wis. v. Averill
    • United States
    • Supreme Court of Oregon
    • 26 Marzo 1935
    ...allowed for bringing error proceedings, and under similar Code provisions, the following cases to the same effect; Cogshall v. Spurry, 47 Kan. 448, 28 P. 154; Bruner v. Nordmeyer, 48 Okl. 415, 150 P. 159; Haynes v. Smith, 29 Okl. 703, 119 P. 246." These two are the only decisions, apart fro......
  • The Liverpool & London & Globe Insurance Company v. Hall
    • United States
    • Court of Appeals of Kansas
    • 1 Mayo 1895
    ...the original petition in error, being as to a mere matter of form, it was permissible at any time before the hearing. (Cogshall v. Spurry, 47 Kan. 448, 28 P. 154.) The objection to the manner in which exceptions were taken to the ruling of the court upon defendant's demurrer to the plaintif......
  • The Coffeyville Gas Company v. Dooley, 14,466
    • United States
    • United States State Supreme Court of Kansas
    • 10 Febrero 1906
    ...P. 626; Carson v. Funk, 27 Kan. 524; Clark v. Schnur, 40 Kan. 72, 19 P. 327; Binns v. Adams, 54 Kan. 615, 38 P. 792; Cogshall v. Spurry, 47 Kan. 448, 28 P. 154; City of McPherson v. Manning, 43 Kan. 129, 23 P. 109.) The errors assigned raise questions arising upon the trial and cannot be co......
  • Request a trial to view additional results

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