Bass v. Swingley

• Decision Date: 07 December 1889
• Parties: R. T. BASS et al. v. H. S. SWINGLEY
• Court: Kansas Supreme Court

22 P. 714

42 Kan. 729

R. T. BASS et al. v. H. S. SWINGLEY

Supreme Court of Kansas

December 7, 1889

Error fro Wyandotte District Court.

THE opinion states the nature of the action, and the material facts.

Judgment reversed and case remended.

Hutchings & Keplinger, for plaintiffs in error.

Hale & Fife, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Wyandotte county, by H. S. Swingley against R. T. Bass and Juliet Bass husband and wife, to recover compensation for services rendered in the sale of certain real estate. That the services were performed, is admitted; but the dispute between the parties is concerning the contract upon which the services were rendered, and the amount to be paid therefor. The contract was wholly in parol. The case was tried on January 18 and 19, 1887, before the court and a jury. About the only evidence introduced on the trial relating to the contract was the parol testimony of the plaintiff Swingley, and that of the defendant R. T. Bass, and it would seem that they were the only persons who had any knowledge as to what the contract really was; and their testimony was conflicting. Upon the testimony of Swingley the plaintiff should have recovered a verdict for $ 1,000, less $ 100 paid, or in other words, $ 900. Upon the testimony of Bass the plaintiff should have recovered a verdict for $ 350, less $ 100 paid, or in other words, $ 250. The jury in fact rendered a verdict in favor of the plaintiff and against the defendants for $ 900. On the same day the defendants filed a motion for a new trial, which motion, omitting the caption and signature, reads as follows:

"And now come the defendants in the above-entitled action, and move the court for a new trial in the above-entitled cause on account of the errors of law occurring upon the trial, which are as follows:

"1. In the admission of evidence excepted to by the defendants.

"2. In the rejection of evidence offered by the defendants.

"3. In giving instructions objected to by defendants.

"4. In the refusal of instructions asked for by the defendants.

"5. Because the verdict of the jury is contrary to the law and the evidence.

"6. On account of newly-discovered evidence which by reasonable prudence defendants could not have discovered and produced on the trial."

All the foregoing proceedings were had while Wyandotte county was a portion of the Tenth judicial district, and before Hon. J. P. Hindman, who was then the judge of that district. Afterward, and on March 19, 1887, Wyandotte county, by virtue of an act of the legislature which took effect on that day, (Laws of 1887, ch. 147, §§ 11, 12,) became the twenty-ninth judicial district, and Hon. O. L. Miller was appointed and became the judge thereof. On August 1, 1887, the motion for the new trial came on for hearing, and was heard. No blame is imputed to anyone for the delay intervening in taking up the motion for rehearing. On the hearing the defendants, as an additional ground for a new trial, claimed and urged that the then presiding judge was not competent to hear and determine the motion, for the reason that he could not know the relative weight of the testimony of the parties, nor the conduct of the witnesses, nor their manner of testifying, etc.; but such judge heard the motion and overruled the same and refused to grant a new trial, and then entered judgment in favor of the plaintiff and against the defendants for the amount of the verdict and for costs; and to reverse this judgment, the defendants, as plaintiffs in error, bring the case to this court.

The contention of the plaintiffs in error, defendants below, now is, that the court below at the time of the hearing of the motion for the new trial had no power concerning the case except to grant a new trial; and this for the reason that the judge of the court at that time could not know what the evidence in the case was. The motion for the new trial was filed in due and proper time, and the grounds set forth therein were such as are authorized by statute, (Civil Code, § 306,) and upon all the grounds relating to the evidence which had previously been introduced the defendants undoubtedly had the right to have the motion heard before a judge who at that time could know what such evidence was. Indeed, the defendants claim that no judge can in any case hear a motion for a new trial where one of' the grounds is that the verdict is against the evidence, except the judge that presided at the trial, and who saw the witnesses, heard them testify, knew what their words were, and their conduct, demeanor and appearance while they were testifying in the case. There are some grounds for such a claim, for under our laws and practice a jury can never in any case determine finally and conclusively what the facts of the case are, for in every case a motion for a new trial challenging the sufficiency of the verdict upon the evidence may be filed, and upon such motion the court is required to reexamine and redetermine all the facts as shown by the evidence. In such a case the judge does not merely register and enforce the verdict of the jury, but it is his duty to intelligently determine whether the verdict is sustained by sufficient evidence or not; and of course he cannot do this unless he presided at the trial, and knows what the evidence was. In the case of Atyeo v. Kelsey, 13 Kan. 212, 216, 217, the following language will be found in the opinion of the court, to wit:

"Where a new trial has been granted, both parties have another opportunity of having a fair and impartial trial upon the merits of the action. But where a new trial has been refused, the matter is ended unless a reversal can be had. Hence new trials should be favored instead of being disfavored, wherever any question can arise as to the correctness of the verdict. As a rule no verdict should be allowed to stand unless both the jury and the court trying the cause can say that they believe that the verdict is correct. While the question is before the jury they are the sole and exclusive judges of all questions of fact. But when the matter comes before the court upon a motion for a new trial, it then becomes the duty of the court to determine for itself whether the verdict is sustained by sufficient evidence or not."

In the case of Williams v. Townsend, 15 Kan. 563, 570, 571, the following language is used in the opinion, to wit:

"It is unquestionably the duty of the district court to set aside a verdict and grant a new trial wherever the jury have manifestly mistaken the evidence. And the district courts cannot shirk their responsibility by saying that the jury are the exclusive judges of all questions of fact. For, while this is true as long as the jury have the case under their consideration, yet, when the jury have rendered their verdict, then the judge himself becomes the exclusive judge of all questions of fact; and, while he cannot reform the verdict, nor modify it in any particular, nor set it aside if it is sustained by sufficient evidence, and by a preponderance of the evidence, yet, if the verdict is manifestly erroneous he should always set it aside and grant a new trial. And he must be controlled by his own judgment in the case, and not by that of the jury."

In other words, the verdict of the jury is not sufficient of itself and alone to authorize a judgment. It also requires the decision of the court upon it and upon the evidence. If no motion is made to set aside the verdict or for a new trial, then of course it is admitted by the parties that the verdict is sustained by sufficient evidence, that it should not be set aside, and that judgment should be rendered upon it, and the court will decide accordingly and render judgment accordingly; but where either party files a motion to set aside the verdict and for a new trial upon the ground that the verdict is not sustained by sufficient evidence, then before any judgment can be rendered upon the verdict, the court itself must decide that the verdict is sustained by sufficient evidence, and this of course cannot be done with any degree of intelligence by a judge who did not hear the case tried, for such judge could not know what the evidence was. There is no legal mode of preserving the evidence introduced on the trial of a case except by the intelligent action of the judge who tried the case, and this by a bill of exceptions or by a case-made for the supreme court. (Dunlap v. McFarland, 25 Kan. 488; The State v. McClintock, 37 id. 40.) The evidence was not so preserved in this case, nor preserved at all by the judge who tried the case. It is true a judge in trying a case might take notes of the evidence introduced on the trial, but these notes would not be legal or sufficient evidence to another judge. It is also true that the counsel in the case might take notes, but neither would these notes be competent evidence. It is also true that an official stenographer might be appointed for the district, and that such stenographer might take notes of the evidence, but his notes could not be evidence to another judge nor any part of the record in the case until after they had been submitted to the judge that tried the case and approved by him, and embodied in either a bill of exceptions or a case-made for the supreme court. (The State v. McClintock, supra.) But even if the evidence should be preserved, so far as it could be preserved in any one of the...