City of Ottawa v. Washabaugh

The opinion of the court was delivered by Valentine, J.: It is our opinion that a petition in error will lie in the supreme court, to reverse an erroneous order of the district court which grants a new trial, although the action may still be' pending undisposed of in the district court; (Civil code, § 542;) but we do not think that any such erroneous order has been made in this case. The new trial was granted in favor of the plaintiff below, .(defendant in error,) and it is claimed by plaintiff in error that the order granting the same was erroneous, first, because the petition below did not state facts sufficient, to constitute a cause of action, and second, because the evidence introduced on the trial by the plaintiff below did not prove any cause of action. [127] Now it may be true, that if the petition fielow were examined and construed in a critical and unfriendly spirit no cause of action would be found to be stated therein; and it may also be true, that if the evidence were examined and construed in the same spirit no cause of action would be found to have been proved on the trial; but this is not the manner in which the petition and the evidence should be examined and construed in determining the question of granting or refusing a new trial in a case like this; certainly not in the supreme court for the purpose of reversing an order of the district court granting a new trial. The merits of this case had not been determined, by - a jury, but had been determined by the court only on a demurrer to the evidence. A jury had been impanneled, but when the plaintiff closed her evidence the defendant interposed a demurrer thereto (under § 275 of the code as amended by the laws of 1872, page 329,) and the court sustained the demurrer and took the case from the jury. Afterward the court granted the plaintiff a new trial, and this is the only ruling of the court of which the plaintiff in error now complains. Did the court err? We think not. Or if so, it was not such an error as will require a reversal of " the order granting 'the new trial. Generally, where a new trial'has been granted the supreme court will require a much stronger case before it will interfere and reverse than where a new trial has been refused. (Field v. Kinnear, 5 Kas., 233.) The petition below if liberally construed.we think states a cause of action; and the evidence if liberally construed we think tends to prove (very remotely and indirectly however,) a cause of action; and this is sufficient to sustain the order complained of. The order of the court below is affirmed. All the Justices concurring.