Ott v. Elmore

• Citation: 67 Kan. 853,73 P. 898
• Decision Date: 10 October 1903
• Docket Number: 13,284
• Parties: A. A. OTT et al. v. WILLIAM ELMORE et al
• Court: United States State Supreme Court of Kansas

73 P. 898

67 Kan. 853

A. A. OTT et al. v. WILLIAM ELMORE et al

No. 13,284

Supreme Court of Kansas

October 10, 1903

Decided July, 1903.

Error from Jackson district court; MARSHALL GEPHART, judge.

Dismissed.

Crane Woodburn & Rokes, for plaintiffs in error.

John D Myers, Angevine & Cubbison, Hayden & Hayden, and Beardsley & Gregory, as amici curiae, for defendants in error.

OPINION

Per Curiam:

Elmore & Cooper sued Ott Brothers on a promissory note. Defendants answered, setting out that the note was given for a balance erroneously supposed to be due upon settlement of an account, the fact being that no balance was owing to plaintiffs. Plaintiffs replied with a general denial. Defendants then filed an amended answer, of which the first answer was made a part by reference, the new matter (designated as a third defense) consisting of allegations that plaintiffs were members of an illegal trade combination, and that the note was given under such circumstances that the anti-trust laws of Kansas forbade a recovery upon it. Plaintiffs moved to strike this third defense from the amended answer and the motion was sustained. The defendants then took leave to amend further, and within the time given filed an amendment to the amended answer, adopting by reference the allegations of pages 1 to 5, inclusive, of the amended answer. It does not appear what portion of the amended answer was intended to be covered by this description. The copy of the amended answer set out in the record consists of eight pages, and the end of the fifth page does not appear to mark a natural division point, nor is there anything to suggest a correspondence between the paging of the record and that of the original pleading. Plaintiff filed a reply, which is entitled "Second reply to amended answer." These are all the pleadings shown by the record (a case-made); but there is no statement that it contains all the pleadings. The case being called for trial, defendants withdrew the second defense set out in their original answer. A jury was impaneled and defendants made a statement of their case to the jury. What this statement was is not shown. Plaintiffs then filed a motion for judgment on the pleadings and the statement of counsel for defendants. The court "sustained said motion of plaintiffs for judgment on the pleadings, and found for said plaintiffs and against said defendants on the pleadings."

Upon this record, the...