The St. Francis Land & Abstract Company v. Rathburn

• Decision Date: 08 April 1911
• Docket Number: 16,803
• Citation: 114 P. 862,84 Kan. 664
• Court: Kansas Supreme Court
• Parties: THE ST. FRANCIS LAND & ABSTRACT COMPANY, Appellee, v. EMMA J. RATHBURN (now EMMA J. GATES), Appellant

114 P. 862

84 Kan. 664

THE ST. FRANCIS LAND & ABSTRACT COMPANY, Appellee, v. EMMA J. RATHBURN (now EMMA J. GATES), Appellant

No. 16,803

Supreme Court of Kansas

April 8, 1911

Decided January, 1911.

Appeal from Cheyenne district court.

Judgment affirmed.

J. L. Finley, Albert Watkins, and Harkless & Histed, for the appellant.

Fred Robertson, for the appellee.

OPINION

Per Curiam:

It appears from the abstract that a motion was filed to require copies of the note and mortgage to be attached to the answer. While the abstract does not show that the motion was acted upon, the failure to attach such copies is one of the grounds of the motion to strike the amended answer from the files, and it will be assumed that this is the ground upon which the court sustained the motion. When the amended answer was stricken from the files it left the original answer standing as though no amended answer had been filed. (See 20 Encyc. Pl. & Pr. 994, where there is a mistake in the text, which should read: "as though no amended answer had been filed.") All that was left of the original answer was the general denial, a demurrer having been sustained to the other defenses, and the appellant might have offered her evidence under the general denial but preferred to stand upon her claim that the court erred in refusing permission to file another answer. It was within the discretion of the court to refuse permission to file a second amended answer. The abstract fails to disclose error in the court's rulings. The evidence of the appellee shows that the mortgage debt had been paid.

The judgment is affirmed.