Stith v. Fullinwieder

• Decision Date: 06 October 1888
• Citation: 19 P. 314,40 Kan. 73
• Parties: J. C. STITH v. J. H. FULLINWIDER
• Court: Kansas Supreme Court

19 P. 314

40 Kan. 73

J. C. STITH v. J. H. FULLINWIDER

Supreme Court of Kansas

October 6, 1888

Error from Butler District Court.

ACTION brought by the plaintiff in error, to recover damages which he alleged he had sustained from the uttering and publishing of a letter concerning him by the defendant. Plaintiff's petition was filed November 11, 1885, and defendant filed his answer on the 8th day of December following, and plaintiff filed a reply thereto. On the 14th day of January, defendant obtained leave of court to amend his answer, and filed an amended answer, to which the plaintiff replied. Thereupon the plaintiff moved the court to require the defendant to make his supplemental answer more definite and certain; which motion the court sustained, and the defendant complied with the order of the court and filed an additional answer. Upon the motion of the plaintiff the court required the defendant to make his supplemental answer more definite and certain whereupon the defendant filed a second supplemental answer to the filing of which answer the plaintiff objected, and the objection was overruled. Upon the issues so joined, the court held that the defendant was entitled to the opening and closing of the case. Trial by jury, and verdict and judgment for the defendant. Plaintiff brings the case here for review.

Judgment affirmed.

C. A Leland, and E. N. Smith, for plaintiff in error.

Shinn & Yeager, for defendant in error.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.:

The errors complained of are: First, the refusal of the court to strike out the supplemental answers of the defendant; second, the court threw the burden of the issues upon the defendant, and gave him the opening and closing; and third, objections to the instructions of the court to the jury.

As to the first of these complaints, we see no error in the court's permitting the several answers and supplemental answers of the defendant to be filed. The last two supplemental answers filed by the defendant were occasioned by the motion of the plaintiff to require said answers to be made more definite and certain. These were filed in compliance with the order of the court, and upon plaintiff's motion. The right to amend pleadings is largely in the discretion of the court. No delay seems to have been occasioned by the filing of these answers, and we see no abuse of discretion.

As to the second objection, we judge that the only question seriously contended for by the plaintiff is, that the court held that the burden of the issues was upon the defendant, and that he had the opening and closing.

Section 275 of the code of civil procedure provides:

"1. The party on whom rests the burden of the issues may briefly state his case, and the evidence by which he expects to sustain it. 2. The adverse party may then briefly state his defense, and the evidence he expects to offer in support of it. 3. The party on whom rests the burden of the issues must first produce his evidence."

Plaintiff's petition charged the defendant with libel, by writing and...