Braymer Manufacturing Co. v. Midwest & Gulf Oil Corp.

The opinion of the court was delivered by Dawson, J.: This was an action on an account, and to secure its collection the plaintiff attached certain chattels of its debtor, the Midwest and Gulf Oil Corporation. At the commencement of the action the defendant was not correctly named, being designated as the Midwest and Gulf Oil Company. About a month later, with leave of court, the plaintiff corrected the title of the action and made an appropriate amendment to its petition. Defendant filed an answer and cross petition alleging damages which it suffered because of the attachment during the month intervening between the time when its property was attached and the time when the pleadings were corrected. From the ruling of the trial'court sustaining plaintiff’s objection to defendant’s evidence in support of its cross petition, the defendant appeals. Under our practice, it was perfectly proper to treat the error in the name of defendant as one of mere form, and this is especially true where, as in this case, there was no doubt as to the identity of the defendant. This defendant was plaintiff’s debtor and it was this defendant’s property which was attached to satisfy the debt it owed to plaintiff. (See Butter Tub Co. v. National Bank, 115 Kan. 63, 222 Pac. 754.) The evidence which defendant might possibly have produced in support of its claim for damages was never forthcoming, by deposi [440] tion, affidavit, or oral testimony, as the code requires, to support and justify a new trial. Appellant would avert the consequences of this by assuming that the proffered evidence was actually before the court. Not so. There was a comprehensive) statement made by appellant’s counsel as to what a witness for defendant would testify to if permitted. That was not sufficient. If that testimony had actually been given, it would have been possible, or, at least, permissible for plaintiff to have produced evidence to controvert it. Soi the argument that the facts were before the court is fallacious. The requisites of the code must be supplied unless waived; and we are bound to hold that there is nothing in the record for this court to review concerning the exclusion of evidence by the trial court. (Civ. Code, § 307; Leach v. Urschel, 112 Kan. 629, 635, 212 Pac. 111; Mansfield v. Crane, 116 Kan. 2, 4, 225 Pac. 1087; and citations in annotations to R. S. 60-3004.) Affirmed.