Kingman, Pratt & Western Railroad Co. v. Quinn

• Decision Date: 07 February 1891
• Citation: 45 Kan. 477,25 P. 1068
• Court: Kansas Supreme Court
• Parties: THE KINGMAN, PRATT & WESTERN RAILROAD COMPANY v. W. J. QUINN

25 P. 1068

45 Kan. 477

THE KINGMAN, PRATT & WESTERN RAILROAD COMPANY v. W. J. QUINN

Supreme Court of Kansas

February 7, 1891

Decided January, 1891.

Error from Pratt District Court.

THE case is sufficiently stated in the opinion, infra, filed at the session of the court in February, 1891.

Judgment reversed and cause remanded.

Geo. R Peck, A. A. Hurd, Robert Dunlap, and Fred. Bentley, for plaintiff in error.

J. C Ellis, and J. G. Waters, for defendant in error.

OPINION

PER CURIAM.

A reexamination of the record in this case satisfies us that the first alleged error was not sufficiently considered in the former hearing. The case was dismissed in this court upon the ground that the evidence was not all preserved in the record. It was stated in the opinion "that the record should contain all of the evidence introduced during the trial of the case in the court below to intelligently consider the questions raised by the plaintiff in error." The first alleged error was, "That the court erred in the admission of testimony tending to show that the justice of the peace, at the time of issuing the warrant, was just outside of the limits of his township, and that therefore he acted without jurisdiction, and his proceedings were void." (Phillips. v. Thralls 26 Kan. 780; Wilcox v. Johnson, 34 id. 655; Railroad Co. v. Rice, 36 id. 493.) A mere general averment of fraud and illegality, without stating the facts on which the charge is based, presents no issue, and no proof is admissible thereunder. (The State v. Williams, 39 Kan. 517, 18 P. 727.)

The petition in the court below contained a copy of the complaint made and filed by James Moore, and also a copy of the warrant issued by F. R. Gammon, the justice of the peace, under which W. J. Quinn was arrested, but did not allege that the acts of the justice were void, because done outside of his township. The petition alleged that F. R. Gammon, the justice, was an agent of the railroad company, and that the arrest of Quinn was illegal and unlawful. If it were intended to prove that the warrant was illegal, because issued by the justice of the peace outside of his own township, allegations to that effect should have been inserted in the petition.

In the absence of any such allegations in the pleadings, it was error for the trial court to admit testimony that the warrant was issued, or other acts of the justice were done, in a township where the justice of the peace had no power to act. The admission of this incompetent and irrelevant evidence against objections ought not to have been allowed. Mr. Greenleaf says of the rules of evidence: "The first of these is, that the evidence must correspond with the allegations, and be confined to the point in issue." (1 Greenl. Ev., §§ 50, 51; Brookover v. Esterly, 12 Kan. 149.) A court ought not, by the admission of incompetent testimony, to enlarge the issues, or permit a jury to pass upon a case not made by the pleadings. (McGonigle v. Atchison, 33 Kan. 726, 7 P. 550; Railroad Co. v. Irwin, 35 id. 286.)

The record in this case contains the pleadings, the special findings, and the judgment of the trial court. It also contains the objectionable testimony concerning the issuance of the warrant in a township where the justice of the peace had no power to act. It was never necessary, when a case was brought to this court upon a bill of exceptions, to set forth any more than was necessary to show the errors complained of, if the record contained the pleadings and judgment. Section 547 of the code provides that a party desiring to have a judgment of the district court reversed by the supreme court, may make a case containing a statement of so much of the proceedings and evidence, or other matters in the action, as may be necessary to present the errors complained of to the supreme court.

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