Wischmann v. Raikes

Simmons, C. J,,

dissenting.

The court, in my opinion, reaches a conclusion here that is unsound and unjust. In doing so it ignores many of our decisions of long standing, overrules in effect several decisions to which no reference is made, and finally reaches a revolutionary construction of a long-established and construed provision of our code of civil procedure.

The right of the plaintiffs to assert and have tried the issue of damages here involved is a valuable property right. It is proposed that it be largely denied. The basis of the denial is a procedural rule which is sound when properly…