Duigenan v. Claus

The opinion of the court was delivered by Valentine, J.: All the matters and things complained of as errors in this case are such as occurred during the trial in the court .below. At the close of the trial in that court the jury found in favor of the defendant and against the [276] plaintiff. The plaintiff then moved for a new trial, setting forth in his motion various grounds, including the rulings now complained of. This motion was heard by the court and overruled, and no exception was taken to the ruling. Judgment was then rendered in favor of the defendant and against the plaintiff for costs, and the plaintiff, as plaintiff in error, brings the case to this court for review; but he does not assign the ruling of the court below upon his motion for a new trial as error, and therefore it is claimed by the defendant in error that there is nothing presented by the petition in error for review in this court. Under the decisions of this court, this claim of the defendant in error is correct. (Carson v. Funk, 27 Kas. 524; Clark v. Schnur, 40 id. 72; Landauer v. Hoagland, 41 id. 520; National Bank v. Jaffray, 41 id. 691; City of McPherson v. Manning, 43 id. 129.) Errors occurring during the trial cannot be considered by the supreme court, unless a motion for a new trial, founded upon and including such errors, has been made by the complaining party and acted upon by the trial court, and its ruling excepted to, and afterward assigned for error in the supreme court. In connection with the cases above cited, see, also, Buettinger v. Hurley, 34 Kas. 585. The judgment of the court below will be affirmed. All the Justices concurring.