State ex rel. Harwi v. Webb

The opinion of the court was delivered by HortoN, C. J.: Section 409 of the code reads: “When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless it is special, or the court order the case to be reserved for future argument or consideration.” Generally, it is the duty of a trial court, upon overruling a defendant’s motion for a new trial, to render judgment upon [467] the general verdict; but special circumstances may arise permitting the court to reserve the case for future argument or consideration, even after the motion for a new trial is overruled. The statute expressly permits this. The application or petition filed by the Atchison Savings Bank in the trial court presents such facts touching the payment and satisfaction of the claim of the plaintiff by the person primarily liable therefor that we do not perceive the trial court abused its discretion in reserving the case for further consideration. Of course, a court has no legal right to suspend an entry of a judgment, or the execution of a judgment arbitrarily, but, with a view to substantial justice between the parties, the court may, for good and sufficient reasons, refuse or delay to enter j udgment. Again, it appears from the allegations of the answers of the defendants that a plaintiff has no longer any interest in the verdict or in the entering of a judgment. A mandamus must be brought in the name of the party in interest. (The State, ex rel., v. Marston, 6 Kas. 532.) The facts alleged in the answers do not show that the plaintiff has made such a transfer his claim or cause of action as to authorize the same to be continued in his name, under § 40 of the civil code. If J. W. Parker were substituted in the action in the place of Harwi, it is apparent, if the facts alleged in the record are true, that he would not be entitled to enforce a judgment of $21,593.50 against the Atchison Savings Bank. If, since the verdict of the jury, A. J. Harwi has been paid his full indebtedness from J. W. Parker for which the bonds were given him as collateral, and has transferred his bonds to Parker or to anyone who holds them for him, the district court of Atchison county may delay the enforcement of the judgment of Harwi against the Atchison Savings Bank until the bank has a reasonable opportunity afforded it to obtain equitable relief from the entering or collection of the judgment for the benefit of Parker. The writ of mandamus lies to a great extent in the discretion of the court where the application is made, and such a writ will not issue unless the plaintiff shows affirma [468] tively that he has a clear legal right to the same. ( The State, ex rel., v. Marston, supra; Cormack v. Wolcott, 37 Kas. 391.) The writ will be denied. All the Justices concurring.