Dudley v. Barney

• Decision Date: 01 June 1896
• Docket Number: 117
• Citation: 46 P. 178,4 Kan.App. 122
• Parties: GUILFORD DUDLEY et al. v. ANNIE C. BARNEY
• Court: Kansas Court of Appeals

46 P. 178

4 Kan.App. 122

GUILFORD DUDLEY et al. v. ANNIE C. BARNEY

No. 117

Court of Appeals of Kansas, Northern Department, Eastern Division

June 1, 1896

Opinion Filed September 9, 1896.

MEMORANDUM. -- Error from Shawnee district court; JOHN GUTHRIE, judge. Action by Annie C. Barney against Guilford Dudley and William O. Ewing for damages for an alleged conversion of a life-insurance policy. Judgment for plaintiff. Defendants bring the case to this court. Affirmed. The opinion herein, filed September 9, 1896, states the material facts.

Judgment affirmed.

Douthitt & Wolfe, for plaintiffs in error.

G. C Clemens, for defendant in error.

GILKESON P. J. All the Judges concurring.

OPINION

GILKESON, P. J.:

At the threshold of our examination we are met with an objection to a review of the errors alleged in this action, for the reason that "the record does not affirmatively show that the motion for a new trial was filed at the term the verdict was rendered, and for this reason it must be presumed that the motion was overruled because not filed in time." Paragraph 4403, General Statutes of 1889, ( § 308, Code,) provides:

"The application for a new trial must be made at the term the verdict, report or decision is rendered; and, except for the cause of newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented."

As we understand this section, the application for a new trial must be made during the term at which the verdict was rendered, and must, except for the one cause of "newly-discovered evidence," be made within three days. In case of "newly-discovered evidence," if "unavoidably prevented," it can be made after the expiration of the three days, but not beyond the term. This seems to be in harmony with the decisions of the supreme court of this state construing this section (Earls v. Earls, 27 Kan. 538; Mercer v. Ringer, 40 id. 189; Powers v. McCue, 48 id. 477; Glass Co. v. Bailey, 51 id. 192); and it seems to be the construction the plaintiff ill error gives to it. The record shows a verdict rendered November 8, 1890; motion for new trial filed November 11, 1890, and nothing further done until July 17, 1891. So, unless this court can rake judicial notice of the duration of the September term, 1890, of the district court of Shawnee county, the record not showing that the motion was filed "during the term at which the verdict was rendered," it will be presumed, for the purpose of upholding the judgment of the court below and the ruling upon the motion for a new trial, that the motion was not made in time, and that therefore the court did not err in overruling it, and that all errors occurring during the trial were waived. (Hover v. Tenney, 27 Kan. 133;...