Traut v. Kirkpatrick

Opinion op the Court by Judge Clay Affirming. F. J. Traut brought this suit against L. Z. Kirkpatrick and others to recover a commission of $10,000 for selling their stock in the Natural Kock Asphalt Corporation. From a verdict and judgment in favor of defendants, plaintiff has appealed. At the outset, we are met by the contention that the trial court erred in refusing to permit the motion and grounds for a new trial to be filed. The motion for a new trial must be made at the term in which the verdict or decision is rendered, and within three days after the verdict or decision is rendered unless unavoidably prevented. Civil Code, sec. 342. It is also the rule that the day on which the verdict or decision is rendered and the day on which the motion is made are both to be computed. *100 Witt v. L. & E. R. Co., 158 Ky. 401, 165 S. W. 399. The record discloses that the verdict was rendered on Wednesday, October 10th, and that the motion and grounds for a new trial were not tendered until Saturday, October 13th. Manifestly, this was too late, unless appellant was unavoidably prevented from filing the motion and grounds before the 13th. Appellant insists that such was the case, as the court was not in session. Here the only showing that the court was not in session is the statement in appellant’s brief, and though the statement be true, it is not supported in any way by the record before us. We cannot adjudge error on information outside the record. Witt v. L. & E. R. Co., supra. It not appearing in any way from record that the court was not in session prior to the day the motion and grounds for a new trial were tendered, we cannot say that the trial court erred in refusing to permit them to be filed. When the motion and grounds for a new trial are not filed in time, the judgment will be affirmed on appeal if the pleadings support the judgment. Witt v. L. & E. R. Co., supra. That the judgment in this case is supported by the pleadings there can be no doubt. Judgment affirmed;