May v. Midwestern Paper Co.

The opinion of the court was delivered by Hopkins, J.: The action was one for damages on account of alleged wrongful attachment. Plaintiff prevailed and defendant appeals. The testimony showed that John Flanders and J. P. Wilson for a short time operated a printing plant in Kansas City, Kan. They had some disagreement, Wilson left and Flanders continued to operate the business. After a short period of operation he sold the plant to his uncle, J. D. Flanders, in consideration of certain indebtedness owing by him to his uncle. Afterwards J. D. Flanders sold the property to May and Rush (plaintiffs here). They made an initial payment of |150 with an agreement to execute notes and mortgage for the balance. Before the notes and mortgage were delivered, but after possession had been relinquished to the plaintiffs and the plant was being operated by them, an attachment was issued against the property in an action by the Kansas City Paper House against John Flanders and J. P. Wilson. The levy was made by the marshal of the city court of Kansas City, who appointed May custodian and permitted plaintiffs to operate the property. Some days afterwards the Midwestern Paper Company (defendant here) filed an action against Flanders and Wilson, attached and took possession of the same property, had locks put on the door, and deprived the plaintiffs of the use thereof. The plaintiffs filed an interplea in the action of the Midwestern Paper Company against Flanders and Wilson; also [736] a motion to dissolve the attachment. On a hearing of the motion, some five weeks later, the attachment was dissolved. On account of the alleged damages resulting from the wrongful attachment of their property, the plaintiffs filed this action. Trial was to the court, and, on September 23,1922, judgment was rendered in favor of plaintiffs for $200. On October 5, 1922, the defendant filed its motion for a new trial, setting up eleven separate reasons why it should have a new trial, among them, “Because the court erred .in admitting incompetent, irrelevant and immaterial and prejudicial evidence, offered by the plaintiff over the objections of the defendant; . . . because the verdict and decision of the court is contrary to and against the greater weight of the evidence.” The statute provides: “The application for a new trial except for the cause of newly discovered evidence, must be made by written motion stating the grounds therefor, filed within three days after the verdict or decision is rendered, unless unavoidably prevented.” (R. S. 60-3003.) No reason was assigned why the motion for new trial was not filed in the required time. It was filed too late. This, however, does not necessarily require a dismissal of the appeal.' It merely limits the scope of the review. (Perkins v. Accident Association, 96 Kan. 553, 152 Pac. 786; Doty v. Shepard, 98 Kan. 309, 158 Pac. 1.) We have, however, examined the record and find sufficient testimony to support the judgment. We have also examined the various assignments of error but find nothing which would warrant a reversal. The judgment is affirmed.