Cavenaugh v. Fuller

The opinion of the court was delivered by Kingman, C. J.: The defendant in error brought a suit upon a note and mortgage—in one count setting up the note and mortgage, and in a second count a claim for an attorney’s fee for foreclosing the mortgage. On the 5th of March 1871 an answer ivas filed to the count on the note, averring payment thereof in full, and a demurrer was filed to the second count. The court sustained the demurrer. The plaintiff then obtained leave to file amended petition, which was literally a copy of the count in the original petition to which an answer was filed with the addition of a prayer for foreclosure. This amended petition was filed on the 27th of March 1871. On the 22d of July thereafter the plaintiff obtained leave to reply to defendant’s answer, which reply was filed the same day. When the cause came on for trial, the defendant demanded a jury, which the court refused, but on the hearing offered to allow the defendant to introduce proof of payment. The court at first treated the case as though the defendant [235] was in default; but as proof of payment could only be admitted under the answer, the court seems to have changed its ground before the judgment. Upon the principles decided . in the case of Stevens v. Thompson, 5 Kas., 305, and Cohen v. Hamill, 8 Kas., 621, the defendant was not in default. The plaintiff below sought by his petition and obtained from the court a personal judgment against the plaintiff in error, as well as the foreclosure of a mortgage. The answer setting up payment, with the reply to it denying the payment, made an issue which under our code entitled the defendant below to a jury. See Clemensen v. Chandler, 4 Kas., 558. The refusal of the court to give a jury trial doubtless grew out of the view which it took that the defendant was in default, which we have seen was erroneous. The judgment is reversed, and a new trial ordered. All the Justices concurring.