Gould v. Robinson
| Decision Date | 06 April 1957 |
| Docket Number | No. 40336,40336 |
| Citation | 309 P.2d 405,181 Kan. 66 |
| Parties | Virginia GOULD, Appellant, v. Chet ROBINSON, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Established rules pertaining to the consideration and disposition of appeals from orders sustaining motions for new trial reviewed and reaffirmed.
2. The record in a replevin action to recover a diamond, wherein the jury returned a general verdict in favor of the plaintiff and the trial court granted defendant a new trial, examined and held that, under the conditions and circumstances set forth in the opinion, (1) the trial court did not err in granting the motion for a new trial; (2) that claims of error made by the defendant on cross-appeal with respect to trial errors are not subject to appellate review; and (3) that having failed to give notice of a cross-appeal from the trial court's ruling on a demurrer to the plaintiff's evidence, defendant is not entitled to a review of that ruling.
Robert H. Nelson, Wichita, and W. A. Kahrs, Julian H. Zimmerman, and Patrick F. Kelly, Wichita, on the brief, for appellant.
A. D. Weiskirch, Wichita, and Manford Holly, Wichita, on the brief, for appellee.
This is a replevin action to recover possession of a diamond or its value. After the jury returned a general verdict for the plaintiff the court granted a new trial. Plaintiff appeals from that order and defendant cross-appeals from an order overruling his motion for a directed verdict at the conclusion of all the evidence.
The pleadings are not long and in such form they disclose the general facts relied on by the parties to support their respective claims. For that reason they will be quoted at length.
Omitting formal averments, allegations identifying the parties and the prayer, the amended petition reads:
'That on the 20th day of May, 1953, plaintiff was the owner of a diamond stone of at least two karat weight, the same being a flawless stone of fine color with a perfect cut, having at that time, a retail value of approximately $4,000.00.
The answer contains a general denial, a prayer that plaintiff be denied all relief sought in her amended petition, and an additional paragraph alleging:
' * * * that on or about the 20th day of May, 1953, plaintiff delivered to defendant a diamond stone to be set in a mounting; that defendant mounted said identical stone in said plaintiff's identical mounting, made her a reasonable charge therefor and on or about May 23rd, 1953, re-delivered back to plaintiff said identical stone and mounting that she previously brought to him.'
With issues joined as related the cause came on for trial by a jury. Thereupon, after opening statements by counsel, plaintiff adduced her evidence to which defendant demurred on the ground it failed to prove a cause of action. When this demurrer was overruled defendant adduced his evidence and rested. Plaintiff followed with her rebuttal evidence and rested. At this point, with evidence of the parties supporting claims made in their respective pleadings, defendant moved to reopen his case for the purpose of producing one more witness he claimed to have discovered the night before. This motion was denied. Defendant then moved the court for a directed verdict on all the evidence. After denial of this motion the court instructed the jury in writing, refusing to give one instruction requested by defendant. Thereupon the cause was submitted to the jury which, in due time, returned into open court its general verdict in favor of plaintiff and against defendant, along with its answers to two special questions submitted by the court. These answers were to the effect that defendant had not returned the same stone she had left with him and that the value of such stone at the time it was delivered to defendant was $3,500. Defendant then moved to set aside the answers to special questions and for judgment non obstante veredicto.
Following the foregoing proceedings defendant filed a motion for a new trial on grounds (1) of abuse of discretion and surprise which ordinary prudence could not have guarded against resulting in his not being afforded an opportunity to present his evidence and be heard fully on the merits of the cause; (2) erroneous rulings and instructions of the court; (3) the verdict was given under the influence of passion and prejudice; (4) the verdict was contrary to the evidence; (5) newly discovered evidence which could not, with reasonable diligence, have been discovered and produced at the trial; and (6) the verdict was procured by the corruption of the plaintiff. Defendant asserts, and plaintiff does not deny, that upon the hearing of the motion for a new trial he presented and argued all grounds of his motion for a new trial. At the close of all arguments on the motion the court granted a new trial generally and set aside the verdict. Following that announcement counsel for plaintiff inquired of the court if it would clarify its reason for that action. The transcript, which we have procured and examined to the end there may be no mistake about it, discloses that in response to such inquiry the court said 'Well, for the reasons presented today.' (Emphasis supplied.) Thereafter, as has been previously indicated, plaintiff gave notice that she was appealing from the order granting a new trial and defendant that he was appealing from the order overruling his motion for a directed verdict at the conclusion of all the evidence.
The fundamental premises on which appellant bases her claim the trial court...
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...course, necessary that a cross-appeal be perfected in order for an appellee to obtain a review of such rulings. (See Gould v. Robinson, 181 Kan. 66, 70, 71, 309 P.2d 405; Fields v. Anderson Cattle Co., 193 Kan. 569, 396 P.2d 284; James v. City of Pittsburg, 195 Kan. 462, Syl. 1, 407 P.2d 50......
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