Drennan v. Chalfant, 39605

• Decision Date: 09 April 1955
• Docket Number: No. 39605,39605
• Citation: 282 P.2d 442,177 Kan. 633
• Parties: Ernest DRENNAN, Appellant, v. H. O. CHALFANT, Appellee.
• Court: Kansas Supreme Court

Page 442

282 P.2d 442

177 Kan. 633

Ernest DRENNAN, Appellant, v. H. O. CHALFANT, Appellee.

No. 39605.

Supreme Court of Kansas.

April 9, 1955.

Syllabus by the Court

1. Where an appellant does not specify as error the denial of his motion for a new trial, trial errors are not subject to appellate review.

2. A defendant in his answer to plaintiff's petition may set forth as many grounds of defense, counterclaim, set-off and for relief as he may have, G.S.1949, 60-710.

3. A set-off may be pleaded in an action for the recovery of money and must be a cause of action for the recovery of money, G.S.1949, 60-713.

4. If a set-off established at the trial exceed the plaintiff's claim so established, judgment must be given for the excess, and if it appear the defendant is entitled to any affirmative relief, judgment shall be given therefor, G.S.1949, 60-3120.

5. The record examined in an action by plaintiff to recover damages for personal injuries in which the defendant pleaded a set-off and cause of action against the plaintiff for criminal conversation with defendant's wife, and held, that the trial court did not err:

1. In denying plaintiff's motion to strike the set-off from the defendant's answer.

2. In overruling plaintiff's demurrer to defendant's set-off.

3. In denying plaintiff's motion for judgment notwithstanding the verdict, nor

4. In rendering judgment on the verdict in favor of the defendant.

Clarence N. Holeman, Wichita, argued the cause, and W. A. Kahrs, Robert H. Nelson, and Wilbur D. Geeding, Wichita, were with him on the brief for the appellant.

J. J. Mangan, Dodge City, argued the cause, and E. C. Minner and Harry A. Waite, Dodge City, were with him on the brief for the appellee.

THIELE, Justice.

On a date not disclosed by the abstract plaintiff commenced action out of which this appeal arises by filing a petition alleging that on August 21, 1953, the defendant intentionally and maliciously shot him with a revolver inflicting injuries for which he sought damages in the sum of $50,000.

The defendant answered and denied generally and alleged that plaintiff attempted to assault him and to kill him and that defendant's acts resulting in the shooting of the plaintiff were done by defendant in defense of his person and life. Defendant also alleged as a 'set-off and cause of action' that on divers occasions prior to and continuing down to April, 1953, the plaintiff has wickedly debauched and carnally known the wife of defendant and without his privity or consent and by reason thereof her affection for him had been alienated, he had been deprived of her love, society, conjugal affections and of her aid in his domestic affairs, and he had suffered great physical pain and mental agony, and had been brought great shame and dishonor, all to his damage in the sum of $100,000. He prayed that plaintiff take nothing and that he had judgment for $100,000.

Plaintiff filed his motion that those parts of defendant's answer alleging a 'set-off and cause of action' be stricken as immaterial and not proper allegations entitling defendant to any relief and no defense to the petition. Plaintiff also demurred to the answer for the reason it did not set forth a proper defense and that the 'set-off' was not a proper set-off to the petition, and should not be considered by the court or jury, and for the reason the set-off was in the nature of a counterclaim and not proper under the cause of action set forth in the petition and did not allege facts that would entitle defendant to a judgment. The motion was denied and the demurrer overruled and thereafter the plaintiff filed a reply joining issue.

At a trial commencing April 20, 1954, the jury returned a general verdict in favor of the defendant for $7,500 and answered in the affirmative one special question submitted asking whether plaintiff has had sexual intercourse with defendant's wife within two years prior to December, 1953, knowing at the time she was defendant's wife and that he did not consent thereto.

Thereafter the plaintiff's motion for judgment in his favor and notwithstanding the verdict for the reason the verdict was contrary to the evidence and the law in the case, and his motion for a new trial were denied, and he perfected his appeal to this court from the judgment, the denial of his motions for a new trial and for judgment and all adverse rulings.

In his abstract the plaintiff specifies as error: 1. The trial court's denial of his motion to strike allegations of the answer; 2. The overruling of his demurrer to defendant's set-off; 3. Erroneous instructions to the jury; 4. Various rulings on objections; 5. Overruling of his motion for judgment notwithstanding the verdict; and 6. In permitting use of the deposition of defendant's wife. In order to clarify what is later said, we note that no error is specified on the ruling on the motion for a new trial.

Appellee challenges the right of the appellant to be heard on his specifications 3, 4 and 6 for the reason each refers to a trial error, and although there was a motion for a new trial which was denied and appeal was taken from the ruling, the ruling on the motion was not specified as error and appellant is not entitled to a review. The challenge is good and is sustained. See Heniff v. Clausen, 154 Kan. 717, 121 P.2d 196; Palmer v. Helmer, 159 Kan. 647, 157 P.2d 531; Mathis v. Public School District No. 103, 175 Kan. 453, 264 P.2d 1082; Weede v. Bannon, 175 Kan. 569, 265 P.2d 1025; Murphy v. Cole, 175 Kan. 822, 267 P.2d 959, and cases cited therein. Specifications 1, 2 and 5 will be considered.

The motion of appellant to strike allegations as to the set-off from appellee's answer and his demurrer to the set-off in that answer raise the same question: May the defendant plead a set-off and obtain affirmative relief thereon? An answer compels a short review of the provisions of our code of civil procedure. The code provides that in his answer the defendant may set forth as many grounds of 'defense, counterclaim, setoff and for relief as he may have'. G.S.1949, 60-710. We need not pause to examine the nature of counterclaim and the right to relief as defined in 60-711 as there is no contention the relief ...