Wilkins v. Moore

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

*539

1. Continuance; diligence.

*538 This was an action to foreclose a note and' mortgage, given by B. S. Wilkins and wife to defendant in *539 error. Mrs. Wilkins filed an answer under oath denying the execution of the note and mortgage. B. S. Wilkins filed no answer. John Poplin, the other plaintiff in error, filed an answer, setting up title in himself by conveyances subse9.uentto the date of the mortgage sued on. Verdiet and judgment were for defendant in error. Many matters are presented to our notice in the brief of counsel for plaintiffs in error, some of which require notice, while others have already been settled. The cases of Educational Association v. Hitchcock, 4 Kas. 36 , and Swenson v. Aultman, 14 Kas. 273 , dispose of the alleged error in overruling the motion for a continuance.

2. Pleading; petition; allegation of non payment. Objection is made to the petition, in that it failed to allege specifically that, at the time of filing, anything was due on the note and mortgage. The mortgage stipulated that on failure to pay interest on the note, or £axeg on mortgaged premises, when due, the whole amount of principal should become due; and the petition alleged a failure to pay interest and taxes, by reason of which failure “the whole amount of money became due and payable, and the said deed has become absolute.” Even conceding that there is a technical defect in the omission of such ordinary allegations as “that the amount is still due and payable,” or, that “the defendant, though often requested, has hitherto refused and does still refuse to pay the same,” yet the error is not one which in the interests of substantial justice calls for any interference with the judgment. A default was alleged. A right of action was shown to have existed. And the presumption would be, that such default and right of action had continued. No plea of payment was filed, and no offer to show that any had been made. The contest was upon another issue — the execution of the note and mortgage. The defendants were in no degree misled.

3. Execution of deed; acknowledgement. The execution of the mortgage was denied under oath. When offered, it appeared to have been duly acknowledged, and over the objection of defendants ° 3 % was admitted in evidence without further proof of its execution. This was proper. The acknowledgment *540 furnishes prima fade evidence of the execution of the deed, and when so acknowledged it may “ be read in evidence without further proof.” (Gen. Stat., p. 188, § 26.) Of course, the matter is still open for further testimony, either written or oral, for the acknowledgment is not conclusive evidence. 'We see no error in the admission or exclusion of testimony that calls for a reversal of the judgment.

4. Client and attorney; privileged communi cations. The defendants below called one of Moore's attorneys as a witness for them, and “offered to show by him-the declarations of Moore to witness whilst witness was his attorney and counsel, which testimony was objected to by plaintiff, as privileged.” “The court overruled the testimony offered, except so far as plaintiff Moore had voluntarjiy offered himself as a witness, but as to those matters permitted the evidence to be given — to which decision and ruling the defendants excepted.” This ruling of the court was substantially in accordance with the statute, and was not erroneous. (The State v. White, 19 Kas. 445 .) The defendants then proceeded to examine said witness under the ruling of the court. His testimony was given accordingly, and it does not appear from the record that any specific question was asked which was objected to. The defendants seem to have rested on the general^ objection and ruling as above stated. Under the pleadings, and consent of parties, but a single question was left for the jury, and that was properly submitted to them.

Jury cannot impeach their own verdict. In support of the motion for new trial defendants offered the affidavits of some of the jurors, that they misunderstood the import of a portion of the testimony. They do not say that if they had understood this portion of the testimony correctly they would have found a different verdict; and it is well settled, that a verdict will not be disturbed upon such affidavits. The State v. Dickson, 6 Kas. 209 ; Terry v. Bailey, 12 Kas. 539 . Upon the whole record we see no substantial error, and the judgment will be affirmed.

All the Justices concurring.