
    M. S. Feidler v. S. Motz.
    New Tkiai, — Objection to Evidence, too Late. The petition sets forth the manner of the indebtedness of the defendant to the plaintiff, and the defendant’s answer is a general denial only; at the trial the defendant’s evidence tends to establish a counterclaim, and no objection is made to its introduction on the ground that the pleadings do not authorize it, but the action is tried and the evidence admitted as if the answer were sufficient to'allow the evidence to be introduced. Held., An objection made for the first time to its introduction on a motion for a new trial is made too late.
    
      Error from Ellis District Court.
    
    The opinion contains a sufficient statement of the case. Judgment for the defendant Motz, at the January term, 1887. The plaintiff Feidler comes to this court.
    
      W. P. Montgomery, for plaintiff in error.
    
      F. Danforih, and D. JRathboñe, for defendant in error.
   Opinion by

Holt, C.:

The plaintiff in error, who was plaintiff below, is and has been a resident of Pennsylvania; visiting this state in 1878, he placed a filing under the timber-culture law, upon the northwest quarter of section 26, town 17, range 18, Ellis county, and left the defendant as his agent in charge of the land. It was afterward taken by his agent, the defendant, in his own name, at the local land office, for the purpose, he says, of preventing it from being “jumped” by other parties. The plaintiff, in his petition, asked judgment for $800, the amount he says defendant received for the improvements on the land, etc., which he had sold.

We are precluded from examining the merits of this case under the record, for after comparing the motion for a new trial with the petition in error, we find the only question we can consider is, whether the answer of defendant was sufficient to authorize the admission of the evidence introduced. The petition sets forth in detail the relationship of the parties and the plaintiff’s claim against defendant. Defendant’s answer was a general denial. At the trial he testified to the expenditure of large sums of money for his principal in payment for the cultivation of the land. At the time this testimony was given no objection to its introduction was made, on the ground that no sufficient allegations had been made in his answer to authorize it. While the testimony introduced would not have been proper under a general denial when objection was made to it for that reason, yet if it was admitted without objection, and the action tried and evidence admitted as though the pleadings were sufficient to justify its introduction, it is too late for the plaintiff to make his objection for the first time in a motion for a new trial to the sufficiency of the pleadings.

This disposes of the case; we therefore recommend an affirmance.

By the Court: It is so ordered.

All the Justices concurring.  