Rice v. Harvey

[148] The opinion of the court was delivered by Horton, C. J.: 1 _ Seeír¿rPtotition Harvey brought an action of replevin against Rice, before a justice of the peace. He obtained possession of the property in controversy upon the order of delivery, and at the trial he obtained judgment for the retention of the property, and also for costs, taxed at $33.90. The cause was then taken up from the decision of the justice’s court on error to the district court, and having been there affirmed, is now presented to this court for a.review of the decision of the district court. The plamtirr in error complains, that the justice admitted incompetent evidence of a very prejudicial nature,against his objection, and subject to his exception. The evidence complained of was embodied in a bill of exceptions allowed and signed by the justice before whom the case was tried, and made a part of the record of the cause. No motion was made for a new trial before the justice; and the defendant in error now insists, that the plaintiff in error has no remedy by petition in error, and that the action of the district court therefore must be affirmed. In this view of the case the latter counsel are sustained by the decisions of this court. Ayers v. Crum, 13 Kas. 269; Nesbit v. Hines, 17 Kas. 316; Hover v. Cockins, 17 Kas. 518. If the ground of error alleged by plaintiff in error is one of the causes for which a new trial may be granted in a justice’s court, then, by the frequent adjudications of this court, such error is waived py the neglect of the party to move for a new trial. On the other hand, if the counsel of plaintiff in error is correct in his argument, that the complaint which he makes against the action of the justice is not one of the causes for a new trial in a justice’s court, he is excluded by such reasoning from obtaining a new trial by the discretion of either this court, or the district court. “A party has no abstract inherent right to a new trial. He has a right because, and so far only as, the statute gives it to him.” Nesbit v. Hines, supra. [149] 2 Appeal from ment;Updro"per remedy. The reasons for requiring a second presentation of alleged errors on the part of the tribunal trying a cause, before such errors are subject to review in this court, are much stronger for errors occurring at the trial of a case before a justice than *n district court. The law provides, that when a party is aggrieved by the final decision 0f a justice he may appeal to the district court, in most cases; and upon such appeal he can have a trial de novo upon the merits of the case. - No such right is granted where a party brings his case here from the judgment of a district court. We can only review the rulings of the district court upon questions of law. In this case, if the plaintiff in error was prevented from having a fair trial by any ruling of the justice, even if he could not apply for a new trial before the justice he had ample remedy by appeal to the district court. Martin v. Armstrong, 12 Ohio St. 548. If the law gives him all of this protection, he ought not to complain because he has not the additional remedy by petition in error. Again, it is not to be expected that causes will be tried with the same judicial care, attention and precision by justices of the peace as by the district judges, who are elected on account of their ability, learning, and experience as lawyers; and therefore the importance of restricting the removal of cases by error from justices courts within all the fair intendments of the law. If this case could be reversed for the single erroneous ruling of the trial justice, almost every case tried before a justice, where the beaten party was represented by as learned, cautious, and watchful an attorney as now argues for a reversal, would be set aside, and justices courts would literally become “courts of errors.” Such a practice is not in consonance with the spirit of our laws, nor the language of our decisions. The judgment of the district court will be affirmed. All the Justices concurring.