Freelove v. Gould

• Decision Date: 01 May 1896
• Docket Number: 135
• Citation: 45 P. 454,3 Kan.App. 750
• Parties: C. W. FREELOVE v. B. T. GOULD
• Court: Kansas Court of Appeals

45 P. 454

3 Kan.App. 750

C. W. FREELOVE v. B. T. GOULD

No. 135

Court of Appeals of Kansas, Northern Department, Central Division.

May 1, 1896

Error from district court, Cloud county; F. W. Sturges, Judge.

Opinion Filed June 4, 1896.

MEMORANDUM.--Error from Cloud district court; F. W. STURGES judge. Action bye B. T. Gould against C. W. Freelove to recover damages for trespasses. Judgment for plaintiff. Defendant brings the case to this court. Reversed. The opinion herein, filed June 4, 1896, states the material facts.

Judgment reversed and case remanded.

C. W Vandemark, and Theodore Laing, for plaintiff in error.

Isaac A. Rigby, for defendant in error; Pulsifer & Alexander, of counsel.

GARVER J. All the Judges concurring.

OPINION

GARVER, J.:

At the threshold of this case counsel for the defendant in error interpose an objection, on the ground that the errors complained of cannot be reviewed by this court, for the reason that no motion for a new trial was made in the trial court within the time required by law. The proposition, which is presented and argued with much skill and ability, is that it is not sufficient that the motion for a new trial be filed within three days after the verdict or decision complained of is rendered, but that the motion must have been actually presented to the court within that time. It is claimed that a written motion for a new trial is not required by the statute; that it may be a mere verbal application to the court, based upon written grounds on file at the time. So far as concerns this question, sections 308 and 309 of the code provide that the application for a new trial must be made at the term the verdict or decision was rendered and within three days thereafter, upon written grounds filed at the time of making the motion. The contention is that the application must be made to the court; that the mere filing of a written application with the clerk, without its being actually called to the attention of the court, and thus presented to it within the three days, is not a compliance with the statute. The argument of counsel is plausible and not without force, and presents a question which at an earlier period in the practice under the code in this state would challenge serious attention. It finds support in the following cases: People v. Ah Sam, 41 Cal. 645; Buckner v. Conly, 1 T.B. Mon. 3; Ex parte Highland Ave. &c. Rld. Co. 17 S. Rep. (Ala.), 182; Wallace v. Lewis, 9 Mont. 399, 24 P. 22; Emison v. Shepard, 121 Ind. 184, 22 N.E. 883.

So far as we are informed, this question has never been raised or passed upon in this state. Occasion for it has been frequent, almost every volume of the reports containing cases wherein the supreme court has considered the manner and time of making a motion for a new trial. These sections of the code have been considered and applied under almost every conceivable state of facts. It has been the uniform practice in this state, from the beginning, to recognize the filing of a written motion for a new trial, within three days after a verdict or decision, as an application "made" within the meaning of section 308, and as equivalent to the formal making and presentation of the motion to the court which counsel for defendant in error claim to be essential. (Mitchell v. Milhoan, 11 Kan. 617; Nesbit v. Hines, 17 id. 316; Fowler v. Young, 19 id. 150; Clayton v. School District, 20 id. 256; Gruble v. Ryus, 23 id. 195; Pratt v. Kelley, 24 id. 111; Hover v. Tenney, 27 id. 133; Dyal v. City of Topeka, 35 id. 62; Mercer v. Ringer, 40 id. 189; Deford v. Orvis, 52 id. 432; Brewing Association v. Wolff, 53 id. 323.)

This construction of the statute has, also, been universally acquiesced in and acted upon by the courts and by the bar of the state, and has become a rule of practice as thoroughly established as if directed by the very letter of the law. The change of construction contended for would not only revolutionize the practice, but would inevitably result in the doing of grievous wrong to litigants who have acted in reliance upon the established rule. The doctrine of stare decisis is peculiarly applicable under such circumstances, and forbids any innovation at this time.

Upon the merits of the case, we find numerous errors complained of, arising out of the rulings of the court and running through a voluminous record. For the most part, they are rulings upon the admission of evidence, and are not of sufficient importance to merit any extended place in this opinion. In the court below, Gould, who had leased a tract of land from Freelove and was in possession of the same, brought an action in the nature of trespass quare clausum fregit, seeking to recover damages alleged to have been sustained from certain wrongful and unlawful entries made by Freelove upon the premises. The petition contains two counts the first declaring upon a trespass upon the premises and the destruction of grass and corn growing thereon, at divers times between the 1st day of March, 1889, and the 5th day of February, 1891; and the second alleging that the defendant, on February 5, 1891, unlawfully entered upon the premises, broke into plaintiff's dwelling-house, took possession of his furniture, household goods, and family clothing, and ejected him therefrom. Gould's tenancy was for a term of...