American Central Insurance v. Neff

Opinion by Green, C.: This action was commenced in the district court of Shawnee county in October, 1882, by the defendant in érror, to recover upon an insurance policy issued by the defendant below to J. R. Misserly, upon a store building in Wellington. The claim was made by the plaintiff below that Misserly and wife sold the property to him, and that he was the owner of the building, when the loss occurred. A trial was had upon the issues joined between the parties, on the 26th of June, 1884, before the Hon. John Martin, then district judge of Shawnee county. After all the testimony had been offered by the parties, the court instructed the jury that under the law and the evidence, the defendant was entitled to a verdict, which was accordingly rendered. Sub [458] sequently, and within the statutory time, the plaintiff filed his motion for a new trial; and about four years thereafter, and after the judge’s term had expired, the motion for a new trial was heard by the present judge of the district court of Shawnee county, and by him sustained; to which ruling of the court plaintiff in error excepted, and brings the record here for review. There is but one question we can pass upon in this case, and that is, the ruling of, the court below in sustaining the motion for a new trial. While there is a case-made filed in this court, and signed by the present judge of the district court of Shawnee county, showing what took place before the motion for a new trial was passed upon, we can only consider the ruling of the court upon this one question, namely, the motion for a new trial. And in the light of the decision made by this court in the case of Bass v. Swingley, 42 Kas. 729, (22 Pac. Rep. 714,) the ruling of the court was correct. We therefore recommend that the action of the court in granting a new trial be affirmed. By the Court: It is so ordered. All the Justices concurring.