The Advocate and news., 1898-04-06
published April 6, 1881
Appellate Court SyIIabi.

Kansas Court Of Appeals, Northern De-
partment, Western Division
NO. 1926.
The First National Bank Of Russell, plain
tln In error,
| vs.
John Peter Knoll, ct al, defendants in
error
Error from Ellis County District Court.
AFFIRMED
Syllabus. BY the Court. McElroy, ].
/. A demurrer on account of defect
of parties" plaintiff Is given by law for
defect and not for an excess or misjonder
OF parties. A misjoinder Of parties plaintn
| is not reached by q demurrer. The petit
| ton states a cause of action, but one cause
Of action, therefore the demurrer was prop
| erly oYerruled
O. The demurrer to the evidence was prop
| erly oVerruled for the reason that the evil
dence fairly tended to prove all the allega-
tions of the petition and made prima facie
case.
g. Instructions requested by plaintiff in
error examined, and held, that the court
properly refused to give the instructions
asked, for the reason that such instruc-
tions were D not applicable to the facts
In the case; (2) that there Is no such rule
OF estoppel as contended for; (S) that the
homestead comprises part of the lands
mentioned, the instruction is inapplicable
to such portion, and was therefore properly
refused.
4. The motion of plaintiff in error to
strike out evidence should have been sus-
tained, the evidence was immaterial; 1t
could not In any manner affect the sub
afaVtAial fnfaRaoto 40 aithar mn M "a
case The refusal to strike out the same
by the trial court does not constitute such
error as to require reversal of the case.
s. Exceptions will not be available to q
party where both plaintiff and defendant
participate in the Introduction Of evidence
concerning @ controversy which Is wholly
foreign to the trlable issues In the case,
and where the whole scope of such inquiry
10 immaterlal, therefore cannot affect the
substantial rights of either party.
6. Exceptions to the refusal Of the court
to sustain an objection to evidence, or to
strike out improper evidence will not be
considered by this court where the party
objectlng falls to designate and point out
the portion of the record in which such
T. The evidence examined and found to
very satisfactorily establish that Knoll and
his mortgages are the owners and enti-
NANu w tAA0 bSSoSSSAOh VA NhV pAOpCAIS lh
controversy.
A true copy.
Attest: P. ]. Goss,
ISeall Clerk
Kansas Court of Appeals, Northern De-
partment, Western Division.
No. 1S9.
Thishler & Schneider, plaintiffs in error
vs.
John Keith, defendant In error.
Syllabus.
I. and 8. sold to G. stallion, warranting
him to be sound and q sure foal getter
receiving therefor certain promssory notes
secured by O. mortgage upon the stallion
sold. G.. sold the stallion to X. upon q
similar warranty, taking az part pay there
for certain promissory notes OF X. pay
able at the same dates as those given by
him to 7. and s. and in sums exceeding
those given by him. ks notes were de-
posted with T.. and s. as collateral se-
curity for c. notes to them and the mort
gage on the stallion released T. and s.
taking the notes with full knowledge OF
the warranty under which they were made:
Held, that I. and 8. are not liable 10 X.
for damages sustained by him under the
contract of warranty with G.
Filed March 4, 1898.
A true copy.
Attest; P. ]. Goss,