Hockett v. Turner

The opinion of the court was delivered by Brewer, J.: Plaintiff in error challenges the correctness of an order of the district court taxing, upon a continuance, the costs of the term against him. The facts briefly are these: The case stood for trial upon petition, answer, and reply. A jury was impanneled, plaintiff introduced testimony in support of his petition, and then, before resting in chief, offered testimony to prove the new matters alleged in his reply. To this the defendant objected, and the court sustained the objection. Plaintiff then asked leave to amend his petition by adding to it allegations of the new matter theretofore only alleged in the reply. Leave was granted, and the petition so amended. Defendant then asked for leave to file an amended answer, and for a continuance to the next term, and thereupon, without any showing, the court ordered a continuance, and taxed the costs of the term to the plaintiff. Was this error? Whether .the court decided correctly in ruling out the offered testimony, is a question not now the proper subject of inquiry, for errors occurring during the progress of a trial can be inquired into only after a final decision. When a court rules out offered testimony on the ground that it is inadmissible under the pleadings, the party may abide by the ruling, and after judgment bring the question here for [529] review, or he may seek leave to amend his pleadings to conform to the ruling. Here the plaintiff chose the latter course. He asked and obtained leave to amend; and of course therefore waived any right to relief he might have had if he had pursued the other course. The other errors alleged occur in the matter of amendments of pleadings, continuances, and taxation of costs thereon, and these matters, as we have repeatedly decided, are largely within the discretion of the trial court, and unless it is apparent that such discretion has been abused, there is no ground for reversal. It is seldom, if ever, wrong to tax the costs of the term against the party whose fault necessitates the continuance. Gen. Stat., p.655, §§ 139, 142; page 746, § 588; Davis v. Wilson, 11 Kas. 74; Bliss v. Carlson, 17 Kas. 325; Wands v. School District, ante, p. 204. We have not noticed the objections made to the validity of the case-made, or to the manner in which the exceptions have been preserved, for upon the facts as stated we are compelled to affirm the judgment. All the Justices concurring.