Schreiner v. Rothgarn
| Decision Date | 05 July 1941 |
| Docket Number | 34983. |
| Citation | 154 Kan. 20,114 P.2d 834 |
| Parties | SCHREINER et al. v. ROTHGARN et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
The want of a transcript of record and the want of an abstract based on such transcript does not necessarily prevent appellate review, but it does preclude a review of all trial errors which a transcript of record alone could portray.
The want of verification in an answer denying an allegation that husband was agent of defendant wife was "waived" where plaintiffs filed a reply to the answer.
See Words and Phrases, Permanent Edition, for all other definitions of "Waive".
Where plaintiffs alleged that defendant who sold property for plaintiffs was agent of defendant's wife but did not allege facts touching the scope and character of the agency and the wife had no dealings with the plaintiffs, the allegation presented no material issue regarding agency to be controverted by a denial under oath.
The want of a transcript does not altogether preclude an appellate review, if the pleadings, instructions, verdict and special findings reveal any errors which Supreme Court can correct despite the want of a complete record of the trial.
1. On appeal, where no transcript of the record has been procured no trial errors can be reviewed.
2. The want of verification in an answer denying an allegation of agency is waived when plaintiffs plead over by filing a reply thereto.
3. Plaintiffs' allegation that the defendant with whom they had a transaction was the agent of his wife, but which contained no facts touching the scope and character of such agency, presented no material issue to be controverted by a denial under oath.
4. Other contentions of plaintiffs urged against the judgment considered and not sustained.
Appeal from District Court, Barton County; Robert Garvin, Judge.
Action by Adam Schreiner and Lydia Schreiner against C. H. Rothgarn and another to recover sale price of town property. From the judgment, plaintiffs appeal.
Clyde P. Cowgill, of Topeka, for appellants.
Wayne H. Lamoreux, of Great Bend, for appellees.
This is the second appearance of this case in this court. 150 Kan 325, 92 P.2d 59. The action arose out of a contract of purchase and sale of a Rush county farm belonging to C. H. Rothgarn which plaintiffs agreed to buy for $3,700. That contract was executed in 1932. Plaintiffs owned some town property in Iowa, and they made a deed to it in blank and delivered it to Rothgarn with the understanding that he should sell it. What he should do with the proceeds was a controverted matter in this action. Plaintiffs alleged that he sold the Iowa property for $1,600 and was to hold the proceeds for them. Rothgarn alleged that he sold it for a price which netted $712.69, and that he was entitled to keep that sum as a down payment on the Rush county farm.
Be that as it may, the contract for the sale of the Rush county farm seems to have been breached or abandoned, but under such circumstances as justified plaintiffs' demand for the return of the sales price of the Iowa town property. Hence this action, commenced on or after January 4, 1938, date not shown, for its recovery. In plaintiffs' petition A. P. Rothgarn was joined as a defendant with C. H. Rothgarn, her husband, and it was alleged that C. H. Rothgarn was the agent of his wife. The main issue raised by the pleadings was the price at which the Iowa town property was sold. Plaintiffs alleged that "in the spring or summer of 1932" C. H. Rothgarn sold the property for $1,600, and that he promised the plaintiffs that he would keep the money for them, and that he gave that sum of money to his wife, A. P. Rothgarn,-- he being then her agent, and that he was then "acting within the scope of said agency and at the same time acting in his own behalf."
Defendants filed separate unverified answers. That of A. P. Rothgarn contained a general denial and invoked the statute of limitations. C. H. Rothgarn's answer likewise contained a general denial, and gave his version of the facts of the contract between himself and plaintiffs for the purchase and sale of the Rush county farm. He set up a copy of that contract, and alleged that its conditions were broken by plaintiffs, and that he sold the Iowa town property at a price which netted $712.69.
To these unverified answers plaintiffs filed general denials; and to the answer of C. H. Rothgarn they further replied that the Rush county farm contract was fraudulent, and they specifically denied that the proceeds of the Iowa town property was to be a down payment on the Rush county farm.
The cause was tried before a jury which returned a verdict for $600 in favor of plaintiffs and against C. H. Rothgarn. The jury also made special findings, which read:
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...a dismissal but that it did exclude from the scope of review those features of the case dependent upon the evidence. In Schreiner v. Rothgarn, 154 Kan. 20, 114 P.2d 834, the claim was made that no transcript of the record had been provided which would enable this court to review alleged err......