Crawford v. Kansas City

• Decision Date: 07 February 1891
• Citation: 25 P. 865,45 Kan. 474
• Court: Kansas Supreme Court
• Parties: D. E. CRAWFORD et al. v. THE KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY

25 P. 865

45 Kan. 474

D. E. CRAWFORD et al. v. THE KANSAS CITY, FORT SCOTT & GULF RAILROAD COMPANY

Supreme Court of Kansas

February 7, 1891

Error from Linn District Court.

THE case is sufficiently stated in the opinion.

Judgment affirmed.

Blue & Rich, for plaintiffs in error.

Wallace Pratt, and Chas. W. Blair, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This action was brought by plaintiffs in error to recover damages for certain horses and colts alleged to have been killed through the negligence of the railroad company. After they had offered their testimony, a demurrer to the same was interposed by the railroad company, on the ground that the evidence offered did not prove a cause of action in their favor and against the company. The court sustained the demurrer and rendered judgment for the company. After the rendition of the judgment, a motion for a new trial was made and overruled, and the plaintiffs then instituted this proceeding to secure a reversal, alleging three grounds of error: First, the exclusion of evidence; second, the sustaining of the demurrer to plaintiffs' evidence; and third, the giving of judgment for defendants instead of plaintiffs; but the over-ruling of the motion for a new trial was not assigned for error.

At the submission of the case in this court, an application was made to amend the petition in error by adding a new assignment of error upon the action of the court in overruling the motion for a new trial. The amendment was permitted to be filed, subject to such objections as defendant in error might make, the court reserving its decision on the effect of the amendment until the final disposition of the case.

It is contended that the testimony offered on the trial tended to sustain the cause of action alleged by plaintiffs, and that the court erred in sustaining the demurrer and taking the case from the jury. This ruling, like all others occurring on the trial, is not available on error, unless a motion for a new trial be made and filed within the time prescribed by law. (Gruble v. Ryus, 23 Kan. 195; Norris v. Evans, 39 id. 668.) Nor can any of the points or questions involved, and which were subject to review upon the motion for a new trial, be considered in this court, unless the overruling of that motion is assigned for error. ( Carson v. Funk, 27 Kan. 524; Clark v. Schnur, 40 id. 72; Landauer v. Hoagland, 41 id. 520; City of McPherson v. Manning, 43 id. 129.) We are therefore precluded from reviewing any of the rulings complained of, unless the petition in error may be and is treated as amended in accordance with the application made by plaintiffs.

The defendant objects to the amendment and the consideration of the order overruling the motion for a new trial, for the reason that more than one year has elapsed since the order was made. Section 556 of the civil code provides that "No proceeding for reversing, vacating, or modifying judgments or final orders shall be commenced, unless within one year after the rendition of the judgment or making of the final order complained of," except in cases where the person entitled to such proceeding be under disability.

The judgment in the case was rendered in November, 1886, and the petition in error was filed in this court on August 27, 1887. The motion for a new trial was made and...