prosecuted; and the confession shall operate as a release of errors."

9940

§ 1252. Offer to confess judgment-Form

"The defendant, in an action for the recovery of money only, may, at any time before the trial, serve upon the plaintiff or his attorney an offer, in writing, to allow judgment to be taken against him for the sum specified therein. If the plaintiff accept the offer and give notice thereof to the defendant or his attorney, within five days after the offer was served, the offer, and an affidavit that the notice. of acceptance was delivered within the time limited, may be filed by the plaintiff, or the defendant may file the acceptance, with a copy of the offer, verified by affidavit; and in either case, the offer and acceptance shall be noted in the journal, and judgment shall be rendered accordingly. If the notice of acceptance be not given in the period limited, the offer shall be deemed withdrawn, and shall not be given in evidence or mentioned on the trial. If the plaintiff fails to obtain judgment for more than was offered by the defendant, he shall pay the defendant's costs from the time of the offer." 41

(Caption.)

To A. B., Plaintiff :

OFFER TO CONFESS JUDGMENT

The above named defendant, C. D., hereby offers to allow judgment to be taken against him for $

entitled action.

40 Rev. Laws 1910, § 5135.

41 Rev. Laws 1910, § 5301.

and costs in the above

C. D., Defendant.

If a notice of acceptance of offer of judgment be not given within the period limited therefor by Gen. St. 1901, § 5000, the offer is deemed withdrawn without any action of une party making it. Johnson v. Wamego Tp., Pottawatomie County, 105 P. 530, 81 Kan. 259.

An offer to allow judgment, served in vacation, but not accepted within five days after service, as provided by Gen. St. 1901, § 5000, will not sustain a judgment thereon over the objection of the party who made the offer, though such offer had been filed with the clerk and was on file when accepted. Johnson v. Wamego Tp., Pottawatomie County, 105 P. 530, 81 Kan. 259.

Where an offer based on alleged settlement pleaded is not accepted by plaintiff, and a trial is had which results in a verdict which is set aside by the court and a new trial granted, and the offer in the answer is not withdrawn, and plaintiff files an acceptance and moves for judgment on the pleadings, and defendant joins in a hearing as to whether the acceptance is a compliance

HON.PL.& PRAC.-77

(1217)

DIVISION I-CONFORMITY TO ISSUES

§ 1253. Conformity to issues in general

The judgment must be sustained by the pleadings and evidence; 2 otherwise, it is a nullity.43

It is error to render judgment for plaintiff on any issue as to

with the offer and does not withdraw the offer, it will be deemed a continuing one, and upon acceptance and compliance with its conditions the court is warranted in entering judgment in conformity with the offer and acceptance. Feight v. Thisler, 114 P. 249, 84 Kan. 185.

42 Graves v. Ray, 75 Okl. 143, 182 P. 513; Crawford v. Cassity, 78 Okl. 261, 190 P. 412.

Under an allegation of fraud and deceit, as the ground for a recovery of damages, the court could not render judgment for plaintiff on a finding by the jury of a mutual mistake of facts. Hallowell v. Smith, 43 P. 89, 2 Kan. App. 473.

43 Rogers v. Bass & Harbour Co., 47 Okl. 786, 150 P. 706; Anglea v. MeMaster, 87 P. 660, 17 Okl. 501; Standard Savings & Loan Ass'n v. Anthony Wholesale Grocery Co., 62 Okl. 242, 162 P. 451, L. R. A. 1917D, 1029.

Personal judgments against defendants over their objection, entirely outside issues is error. Paulsen v. Western Electric Co. (Okl.) 171 P. 38.

That part of a judgment in an ancillary suit by a receiver to obtain possession of property which appointed the receiver permanent custodian is beyond the issues and will be set aside, the extent of the power of the receiver being properly justiciable in the main action. Severns v. English, 63 Okl. 84, 159 P. 917, judgment modified on rehearing 63 Okl. 84, 163 P. 526.

In foreclosure where a defendant filed a cross-petition, alleging that a co

which the burden of proof rests on him and as to which he has offered no evidence.44

A judgment for attorney's fees cannot be upheld as punitive damages, where the record shows that no issue as to punitive damages was determined.45

In an equitable suit, where all parties submitted proof to sustain their pleadings, the district court, in granting plaintiff the necessary and proper relief, was not restricted by his prayer for specific relief, but under the prayer for general relief might grant such appropriate relief as followed legitimately and logically from all pleadings and proof.46

defendant was indebted to it, and that C., a third defendant, claimed some interest in land inferior to that of defendant, a personal judgment against C. was a nullity being without issues. Standard Savings & Loan Ass'n v. Anthony Wholesale Grocery Co., 62 Okl. 242, 162 P. 451, L. R. A. 1917D, 1029.

The court should not disregard competent testimony as to the sufficiency of title to land in another state, and, without either pleading or proof of the law of such state, pass judgment by an independent examination of the abstract. Spaeth v. Kouns, 148 P. 651, 95 Kan. 320, L. R. A. 1915E, 271.

On the trial of a civil action, where one of two defendants has pleaded new matters of fact which, if sustained by the evidence, entitle him to relief concerning the subject-matter of the action, and he has produced evidence tending to establish such issue, it is error to render judgment without regard thereto. Rankin v. Trickett, 89 P. 698, 75 Kan. 306.

Where a demurrer to a petition is sustained on the ground of misjoinder of causes, and without other pleading the court enters a judgment for defendant that he is the owner and entitled to the possession of the property in question, such judgment is based on no allegation of fact in any pleading, and is coram non judice and void. New v. Smith, 119 P. 380, 86 Kan. 1.

Where, in an action for damages for refusal of a corporation to transfer stock on its books on demand, the only allegation as to damages is that defendant converted the stock to its own use, to the damage of plaintiff, in the sum of 20 cents per share, judgment should not be rendered for that amount, where the only evidence of damage is the production of certificates of stock assigned to the plaintiff, reciting that the shares are $1 each, fully paid. Uncle Sam Oil Co. v. Forrester, 100 P. 512, 79 Kan. 610; Same v. Oehler, 100 P. 512, 79 Kan. 861.

Where petition avers acts done in pursuance of conspiracy and plaintiff fails to prove conspiracy, he may yet recover against such defendants as are shown guilty of tort. Harbison v. White, 56 Okl. 566, 156 P. 335.

44 Miller v. Kroenert, 106 P. 459, 81 Kan. 590,

45 Evans v. Central Life Ins. Co., 125 P. 86, 87 Kan. 641, 41 L. R. A. (N. S.) 1130.

46 Henderson v. Arkansas (Okl.) 176 P. 751.

§ 1254. Conformity to pleadings

A judgment should not be rendered on an issue which is not fairly raised by the pleadings.*7

Where a court has jurisdiction of the parties, the subject-matter, and of the particular question adjudicated, its judgment is not void because the petition is defective; 48 but judgment for plaintiffs, unauthorized by the petition and evidence, is void.**

47 Spaeth v. Kouns, 148 P. 651, 95 Kan. 320, L. R. A. 1915E, 271; Champion v. Oklahoma City Land & Development Co., 61 Okl. 135, 159 P. 854.

A decree for reformation held unauthorized, where there was no allegation in the petition of either fraud or mistake in the execution of the deed. Thraves v. Greenlees, 142 P. 1021, 42 Okl. 764. The reformation of a deed so as to convey a less estate than that named will not be granted where the elements necessary to justify it are not pleaded. Id.

Where in a pedestrian's action for injuries from being struck by an automobile the jury found that the driver of the car was negligent in a particular not complained of in the petition, the driver was entitled to judgment. Keck v. Jones, 155 P. 950, 97 Kan. 470.

A petition for recovery of money had and received and for exemplary damage will not support a judgment establishing a trust. Citizens' Bank & Trust Co. of Pryor v. Hale (Okl.) 177 P. 366.

Where a passenger holding a ticket for a station at which the train was not scheduled to stop was ejected before he reached that station, for refusal to pay fare to the next station beyond at which the train did stop, and sued the company for damages as for a wrongful ejection, he could not recover as for a breach of a contract to permit him to alight at his station. Noble v. Atchison, T. & S. F. R. Co., 46 P. 483, 4 Okl. 534.

In the absence of a motion by defendant to require plaintiff to elect on which of several causes of action he would rely, or a motion to make his petition more definite, a judgment which can be upheld on any of the causes or on any combination of any of them which are not inconsistent will be sustained. Kansas Refrigerator Co. v. Pert, 42 P. 943, 3 Kan. App. 364.

In replevin, a general denial in a case where plaintiff has obtained possession but does not prevail at the trial authorizes judgment for the possession or for the value of the property as the facts warrant. Stiller v. Atchison, T. & S. F. Ry. Co., 124 P. 595, 34 Okl. 45.

Where in an action to enjoin a sale of plaintiff's goods on execution issued

48 Bell v. Ford (Okl.) 173 P. 524.

Where court has jurisdiction of subject-matter and of parties, though their petition was defective in stating cause of action, if relief sought can be determined, judgment rendered thereon is not void. Stauffer v. Watts (Okl.) 174 P. 1031.

Judgment, in cause in which defendant appears and in which petition presents subject-matter within court's jurisdiction, but states cause of action defectively or not at all, is erroneous but not void. Chivers v. Board of Com'rs of Johnston County, 62 Okl. 2, 161 P. 822, L. R. A. 1917B, 1296.

49 Choi v. Turk, 55 Okl. 499, 154 P. 1000.

The joinder in a petition of two causes, only one of which is maintainable, does not vitiate the entire procedure, and a judgment on the maintainable cause of action is valid.50

Where two railroad companies are jointly charged with setting a fire, a judgment may be rendered against either or both as may be proper under the evidence.51

§ 1255. Prayer

The right to recover depends, not upon the prayer, but upon the scope of the issues made or which might have been made,52 and, if a cause of action is sufficiently stated and proved, the court will decree proper legal redress, whether it conforms to prayer or not.53 on a judgment alleged to have been paid, and to have the judgment satisfied of record, and also for damages for such levy as malicious, the court required plaintiff to elect on which cause of action he would proceed, whereupon plaintiff chose the latter, it was error to render an order canceling the judgment, since such issue had been abandoned. W. W. Kendall Boot & Shoe Co. v. Davenport, 65 P. 688, 63 Kan. 884.

50 Continental Gin Co. v. Arnold (Okl.) 167 P. 613, L. R. A. 1918B, 511. 51 St. Louis & S. F. R. Co. v. Noland, 90 P. 273, 75 Kan. 691.

52 Paulsen v. Western Electric Co. (Okl.) 171 P. 38.

Right to recover depends not upon the prayer, but upon the scope of the pleading and the issues made or which might have been made under it. Willoughby v. Summers, 62 Okl. 98, 162 P. 206.

53 Eagan v. Murray, 102 Kan. 193, 170 P. 389.

That plaintiff did not demand the precise relief to which he was entitled held not to deprive him of his right to recover, where the petition stated facts entitling him to recover damages for maintenance of a public nuisance. City of Ardmore v. Colbert, 52 Okl. 235, 152 P. 603.

An answer and cross-petition which stated facts entitling defendant to a money judgment, and prayed that his lien be preserved and for such other relief as he may in equity be entitled to, held sufficient to entitle him to a money judgment, though there was no prayer therefor. Nesbitt v. Chesebro, 133 P. 545, 89 Kan. 863, judgment modified on rehearing 136 P. 793, 91 Kan. 14. Where a judgment is justified by the pleadings and proof, it is immaterial that it is not in conformity with the prayer of the complaint. Hardy v. Ladow, 83 P. 401, 72 Kan. 174; First Nat. Bank v. Wattles, 54 P. 1103, 8 Kan. App. 136.

A judgment for defendant in an action for the recovery of land is necessarily a bar to another action by the plaintiffs, and the fact that the judgment quiets the title in defendant is without prejudice to plaintiffs as against the objection that no affirmative relief was prayed in the answer. Balin v. Osoba, 91 P. 57, 76 Kan. 234.

In view of Code Civ. Proc. § 92 (Gen. St. 1915, § 6983), requiring a petition to contain a demand for relief to which party supposes himself to be entitled, one purpose of a prayer is that a party may understand what relief will be given against him if default be made, and defendant may ordinarily assume