Andrews v. Hein

• Decision Date: 06 December 1958
• Docket Number: No. 41093,41093
• Citation: 183 Kan. 751,332 P.2d 278
• Parties: Clyde ANDREWS, Appellant, v. Martin HEIN and Paul Hein, d/b/a The Hein Bros. Body & Fender Works, Appellees.
• Court: Kansas Supreme Court

Page 278

332 P.2d 278

183 Kan. 751

Clyde ANDREWS, Appellant, v. Martin HEIN and Paul Hein, d/b/a The Hein Bros. Body &amp Fender Works, Appellees.

No. 41093.

Supreme Court of Kansas.

Dec. 6, 1958.

Syllabus by the Court

1. In the absence of a motion for a new trial, trial errors are not open to appellate review.

2. Appellate review of a ruling on a demurrer to evidence is restricted to the evidence admitted and considered in ruling on the demurrer and, on appeal from such ruling, trial errors involved in the admission or rejection of evidence are not subject to review unless they are raised by a motion for a new trial.

3. The record in an action to recover damages resulting from a collision of motor vehicles examined and held to disclose no error warranting a reversal of the judgment.

Otto J. Koerner, Wichita, argued the cause, and Benj. F. Hegler, Lee R. Meador and Thomas A. Bush, Wichita, were with him on the briefs for the appellant.

Patrick J. Warnick, Wichita, argued the cause, and Roy L. Rogers and Alan B. Phares, Wichita, were with him on the briefs for appellees.

PARKER, Chief Justice.

Plaintiff brought this action in the court of common pleas of Sedgwick County against the defendants, to recover damages sustained to his automobile as the result of a collision between two motor vehicles on a public highway, and failed to recover. He then perfected an appeal to the district court where, under issues joined by the pleadings in the court of first resort, the case proceeded to trial and a demurrer to his evidence, based on the ground such evidence failed to establish a cause of action, was sustained. Following this action judgment was rendered against him for costs of the action. Thereupon, without filing a motion for a new trial, he perfected the instant appeal, under a notice reciting that he was appealing from the judgment, order and decision rendered and made, and particularly from rulings made during the trial, and the ruling sustaining the demurrer to his evidence.

In a general way it may be said that claims advanced by appellant as grounds for reversal of the judgment are that the trial court erred (1) in failing to allow questions in a deposition to be read in the same manner as if witnesses were present in open court; (2) by striking evidence relating to medical bills paid by him; (3) in erroneously excluding evidence pertaining to damages sustained to his automobile as a result of the collision in question; (4) in denying his motion to reopen the case for the purpose of introducing further evidence; (5) in reading ahead in the deposition in a manner unlike a trial in open court with the witness present; and (6) in sustaining the demurrer to his evidence.

Before giving any consideration to the merits of the foregoing claims we must first determine whether, absent a motion for a new trial, they are subject to review on this appeal. We therefore turn to that question.

The rule in this jurisdiction, so well-established as to scarcely require citation of any of the numerious authorities supporting it, is that where there is no motion for a new trial filed in the district court, trial errors are not open to appellate review. See King v. King, 183 Kan. 406, 327 P.2d 865; Marshall v. Bailey, 183 Kan. 310, 327 P.2d .1034; Jeffers v. Jeffers, 181 Kan. 515, 313 P.2d 233; Brewer v. Hearne Motor Freight Lines, Inc., 179 Kan. 732, 297 P.2d 1108; State ex rel. Fatzer v. Miller, 176 Kan. 175, 268 P.2d 964. For numerous other decisions of like import see Hatcher's Kansas Digest [Rev.Ed.], Appeal & Error, § 366; West's Kansas Digest Appeal & Error, k281(1).

See, also, Marshall v. Bailey, supra, where, in applying the foregoing rule, it is said that trial errors 'include rulings of the district court on dilatory pleas, orders setting the cause for trial, denial of additional time to plead, the overruling of a motion for judgment on counsel's opening statement, the admission or exclusion of evidence, the sufficiency of evidence to support the judgment, the erroneous instructions to the jury, misconduct of court or counsel, and general miscellaneous irregularities of procedure and practice for which new trials may be granted on timely motion of a defeated litigant. (citing decisions.)' (183 Kan. at page 313, 327 P.2d at page 1037.)

Pointing to our decisions, holding that a motion for a new trial is neither necessary nor required in order to obtain review of a ruling on a demurrer to evidence, app...