Hawley v. Histed

The opinion of the court was delivered by Valentine, J.:

This1 action was commenced an'tried before a justice of thé peace. The verdict and judgment were for Histed, the plaintiff below. The defendant Hawley then appealed to the district court. Trial was again had,, this time by the coxirt without a jury, and the finding, and. judgment were again for the plaintiff below. The defendant as plaintiff in error now brings the case to this court. The-case was tried in the .district court on the bills of particulars filed in the justice’s court. No question was raised in either court, or by either party, as to the sufficiency of the bills of particulars. None of the evidence introduced on the trial is preserved in the record. No special findings were made by the court below, but a general fi nding only was made for the plaintiff. No motion was made for a new trial on any ground. No objection was made to either the finding or the judgment. And not an exception was taken by either party to any ruling *268 of the court below. No question was presented to the court' below except questions of fact. These were presented by the pleadings, and were determined on the evidence. And as none of the evidence is brought to this court how it is expected that we shall review the action of the district court we can hardly imagine. The bill of particulars of the defendant 'below (plaintiff in error) ivas a general denial, and a plea of the statute of limitations. This raised questions of fact only, and upon a trial upon the merits of the action the facts were found against the defendant below'. But possibly may be claimed that plaintiff’s bill of particulars showed upon its face that the .plaintiff’s cause of action Avas barred by the statute of limitations. If it did why did not the defendant raise the question in the court below ? Answering to the merits did not raise any such question. There are many defects to AArhich a pleading may be subject Avhich may be cured by trial on the merits, verdict, or finding, and the judgment of the court. For what is defectively stated in the pleading is presumed to have been duly proved on the trial. This is one of that class of defects. No court of last resort,, that Ave are aware of, has ever yet reversed a judgment of an! inferior court because a pleading shoAved upon its face that the cause of action therein stated was barred by the statute of limitations, unless the question Avas first fairly raised and acted upon in the court beloAV. In this case Ave must jjresume that the plaintiff’s cause of action was not in fact barred; Ave must presume that the evidence showed that it .Avas not in fact-barred; and therefore if the defendant beloAV had at any time raised said question the plaintiff could (if necessary) have amended his bill of particulars so as to sIioav that the cause •of action Avas not barred. Even after judgment, if the defendant. had raised the question, the plaintiff could have amended his bill of particulars so as to make it correspond with the facts proved. (See §139 of the civil code.) It has already been decided in this court that when a cause has been tided upon its merits in the district court this court Avill not consider a question, raised for the first time in the supreme *269 court, whether the plaintiff's pleading shows upon its face that the cause of action therein alleged is barred by the statute of limitations; (Greer v. Adams, 6 Kas., 203 ;) 'and to this decision we still adhere. It can hardly be claimed however that the plaintiff's bill of particulars in this case shows affirmatively upon its face that the plaintiff's cause of action was' barred. It shows when certain services were performed, but compensation for services does not always become due when the services are performed. That depends upon the contract of the parties. Also, there were two payments made on the plaintiff's claim which, from the bill of particulars, seems to have been made on the whole claim of the plaintiff on the first item as well as on the last. The last payment is not dated, and that may have been made at a time when it would have taken the whole claim out of the statute. The last item charged in the plaintiff's bill of particulars is dated November 1869. Now if the plaintiff's claim was a running account, and it does not appear definitely whether it was or not, this last item would have prevented the whole of the plaintiff’s claim from being barred when this suit was commenced. But how much must a plaintiff state in his bill of particulars in a justice’s court? Must the bill of particulars show affirmatively and definitely that the claim is not barred? Must it show that said claim was a running account, or that the payment thereon was made at a time when it would take the claim out of the statute? Must it show that the defendant was absent from the state, or concealed herself, etc., so that the statute would not run? Must it show that the defendant promised to pay the claim in writing within three years before the commencement of the suit? Must it be as specific, as definite, and certain, and as full and complete in its statement of facts, as a petition in the district court? "We do not propose to answer any of these questions at the present time. The judgment of the court below must be affirmed.

All the Justices concurring.