Buettinger v. Hurley
| Citation | 34 Kan. 585,9 P. 197 |
| Parties | WILLIAM BUETTINGER v. MARGARET HURLEY, et al |
| Decision Date | 09 January 1886 |
| Court | United States State Supreme Court of Kansas |
Error from Leavenworth District Court.
TWO ACTIONS--one of unlawful detainer, and the other in the nature of ejectment--brought by Buettinger against Hurley and another. In the former action, judgment for costs against the plaintiff was rendered at the April Term, 1883; in the latter action, judgment for costs against the plaintiff at the September Term, 1883. Hurley brings the cases here. The facts are stated in the opinion.
Judgment affirmed.
H. T Green, for plaintiff in error.
Lucien Baker, for defendants in error.
OPINION
Two cases of the same title are now presented to this court upon the same briefs and the same argument. The first case was an action of unlawful detainer, commenced originally by William Buettinger against Margaret Hurley and G. M. Hurley before a justice of the peace, to recover the possession of a certain piece of land, which action was taken on appeal to the district court, where it was tried before the court and a jury, and judgment rendered in favor of the defendants and against the plaintiff for costs. The other case was an action in the nature of ejectment, brought originally in the district court, by the same plaintiff against the same defendants, for the recovery of the same piece of land, which case was also tried before the court and a jury, and judgment rendered in favor of the defendants and against the plaintiff for costs. Both of the foregoing judgments the plaintiff, as plaintiff in error, now seeks to have reversed by separate petitions in error in this court.
The errors assigned in the first case relate to rulings of the court below at the trial, and the overruling of the plaintiff's motion for a new trial. Unfortunately however, for the plaintiff, the record does not show that any exception was taken to any of the instructions given or refused by the court below, and it does not appear that the motion for a new trial has ever been acted upon by the trial court. It appears from the record that after the verdict of the jury was rendered, and after a certain special finding was made by the jury, the defendant moved for a new trial upon various grounds, and that afterward, without any action being taken upon the motion for a new trial, the court rendered judgment against the plaintiff and in favor of the defendants upon the verdict and finding of the jury; and that this was done without any objection, protest or exception by the plaintiff. Now we cannot assume that because judgment was rendered upon the verdict and finding, that the motion for the new trial was acted upon; for a judgment may be rendered and the judgment enforced pending a motion for a new trial; and in the absence of any objection by either party, no error would be committed by the trial court in adopting or following such a course. (Church v. Goodin, 22 Kan. 527; Bliss v. Burnes, McCahon, 91; same case, 1 Kan. [Dassler's ed.,] 518.) In other words, without any showing in the record, we cannot say that the motion for the new trial was acted upon by the trial court; nor can we say that the court erred with reference thereto. Error must be affirmatively shown; and it will not, in the absence of any showing, be presumed. Also, in the absence of any action by the court below on the motion for a new trial, this court cannot say that the court below erred with regard to any of the proceedings occurring during the trial. (Decker v. House, 30 Kan. 614, 616, 1 P. 584, and cases there cited.) It is held in the case just cited, "that all errors occurring during the trial, including supposed erroneous findings of the court or jury, are waived, and cannot be considered by this court, unless a motion for a new trial, founded upon and including such supposed errors, has been made and overruled in the district court;" and to this decision we adhere.
In the second case only one question is presented, which is as follows: While...
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