McDonald v. Weeks & Robinson

The opinion of the court was delivered by Horton, C. J.: This case must be reversed, and a new trial granted upon the amended petition filed by J. A. Cooper & Co. to set aside the verdict of the jury and the judgment of the court rendered against them on September 9, 1882, for errors of the court in its disposition of said petition, and the motion for a new trial filed March 13, 1883. The motion for a new trial was filed too late, and therefore the objections to it should have been sustained. (Code, §§ 308,309.) There vas no showing made that the parties filing the motion were unavoidably prevented from filing the same within three days after the rendition of the judgment. In addition to this, it appears from the record that the testimony on the petition to vacate the verdict of the jury and for a new trial, also on the motion to vacate the judgment and to dissolve the attachment, was all introduced by the respective parties before any arguments were made by the attorneys and before the decision of the court’upon either question. Although J. A. McDonald asked the court to hear the cases separately, the court refused to hear them separately, but decided that all these questions should be submitted, and that afterward it would take them under advisement and decide them separately. In the rendition of the judgment, however, the petition to vacate the verdict of the jury and for a new trial, and also the motion to vacate the judgment, seem to have been disposed of together, and it is impossible to tell whether the court rendered its judgment, that the verdict of the jury, in the case of J. A. Cooper & Co. against J. A. McDonald, should be set aside, and a new trial granted upon the amended petition, or upon [61] the motion for a new trial. If the judgment was rendered upon the motion, it was wholly erroneous, and as we cannot say from the record whether the evidence offered in support of the petition or the evidence in support of the motion was controlling, and as the court committed error in considering the motion and receiving any evidence thereunder, the case must be retried. For aught that appears, the court may have denied the relief granted on the petition, and yet vacated the judgment on the motion. The petition charged that there was misconduct on the part of the jury in considering and arriving at the verdict, and especially in arriving at the amount of damages returned. It is unnecessary to comment upon this, as the evidence is very conflicting, and not clear or conclusive. The law upon this matter is fully stated in Bailey v. Beck, 21 Kas. 462, and upon another trial the evidence will doubtless be more satisfactory. No motion for a new trial is necessary to obtain a review of the proceedings of the trial court in its disposition of the motion to vacate the judgment. The inter-pleader was entitled to have a judgment rendered expressly upon the petition before filing a motion for a new trial, if a motion for a new trial under the circumstances was necessary. The judgment will be reversed, and the cause remanded for a new trial. Valentine, C. J., concurring. Hubd, J., not sitting in the case.