Miller v. Rankin
| Citation | 137 S.W. 15,155 Mo.App. 394 |
| Parties | HARRY E. MILLER, Respondent, v. D. CLARK RANKIN, Appellant |
| Decision Date | 01 May 1911 |
| Court | Kansas Court of Appeals |
Appeal from Andrew Circuit Court.--Hon. Alonzo D. Burnes, Judge.
Judgment affirmed.
W. R Littell, J. L. Miles and Booher & Williams for appellant.
Allen Gubbert, Mitchell & Martin and Hine & Cross for respondent.
This action was instituted in Atchison county, for fraud and deceit in the sale of a lot of hogs by defendant, and was tried in that county where a verdict was returned for defendant. A new trial was granted on account of error in instructions and from that order defendant appealed to this court where the order was affirmed (136 Mo.App. 426). On return of the cause to Atchison county, a change of venue was granted to another circuit, where judgment was rendered for the plaintiff and defendant took his appeal in due course.
The petition was in two counts, the first for fraud and deceit and the second for breach of warranty. The latter was abandoned at the close of the evidence before the case was submitted to the jury, and the verdict was based on the former. Before the trial opened defendant made a written motion requiring plaintiff to elect on which count he would proceed. The motion was based on the alleged ground that the two counts could not properly be joined in the same petition, and that, therefore, defendant should only be required to go to trial on one. It does not appear whether any ruling was made on the motion. If we should infer that it was overruled from the fact that at the close of the evidence an election was made, we are still unable to consider the question, from the fact that no exception is shown to have been taken to the refusal of the court (if it did refuse) to compel an election at the beginning of the trial.
The next objection to the judgment is that defendant was surprised by the evidence of certain witnesses in plaintiff's behalf. There are two reasons why we must overrule this objection: First, there was no excuse, as viewed by the law on the question of surprise, why defendant should have been surprised; and, second, if he was surprised he should have filed affidavit to that effect and asked for a continuance before accepting the chance of a verdict in his own favor. [Thiele v. Ry. Co., 140 Mo. 319, 338; Bragg v. City of Moberly, 17 Mo.App. 221.]
It is insisted that the evidence does not...
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