"This motion may be made by the unsuccessful party, whether plaintiff or defendant, when he conceives that the issue joined was an immaterial issue, that is, not taken on a point proper to decide the action." 9

7 Hartley vs. Chidester, 36 Kan., 363.

8 Thompson on Trials, Vol. II, Sec. 2708. 9 Stephen on Pleading, Sec. 98.