Hanson v. Kendt
| Decision Date | 06 March 1915 |
| Docket Number | 18298.[d1] |
| Parties | HANSON v. KENDT ET AL. |
| Court | Kansas Supreme Court |
An application for a change of venue, supported by the affidavit of the party making such application, setting forth that a fair and impartial trial cannot be had because of prejudice in the county against the applicant, and that the judge is biased and prejudiced in favor of the opposite party, and that the applicant has a suit pending against the judge for alleged misrulings and proceedings without jurisdiction, is not of itself sufficient to compel such a change.
A judgment will not be disturbed for irregularities of the clerk of the district court in calling jurors for the trial of a cause, unless it appears that the party complaining was prejudiced thereby.
Instructions stating correct principles of law applicable to the pleadings, will be presumed to have conformed to the facts proved, in the absence of any abstract of, or statement concerning, the evidence.
A motion for a new trial, which alleges inability to procure the attendance of a witness, when no application for a continuance, or other request, is made on that account when the case is called for trial, is properly denied.
A motion for a new trial, which alleges surprises because a witness did not give more definite testimony, is properly denied, when no application or request of any kind is presented to the court at the time the testimony is given.
Appeal from District Court, McPherson County.
Action by John F. Hanson against William Kendt and others. From judgment for defendants, plaintiff appeals. Affirmed.
John F. Hanson, of Lindsborg, for appellant.
Grattan & Grattan, of McPherson, for appellees.
This is an action for damages. The plaintiff alleges:
"That the * * * defendants * * * did * * * unlawfully and with force assault * * * the * * * plaintiff, * * * to his damage in the sum of $25,000."
There was a jury trial and verdict in favor of the defendants. The plaintiff appeals. No abstract of the evidence is filed.
The errors complained of are as follows: (1) Denying plaintiff’s application for a change of venue. (2) Overruling objections to irregularities of the clerk in calling the jury. (3) Concerning the instructions given. (4) Denying plaintiff’s motion for a new trial. Here the plaintiff complains of his inability to secure the attendance of one witness, of a witness not testifying as plaintiff had expected him to, and because of certain statements made in the presence of one of the jurors. (5) That the trial judge was seen talking to counsel for the defendants concerning instructions to be given. (6) Rendering judgment upon the verdict which contained the words "not guilty."
We will examine these matters in the order named.
1. Was there error in refusing a change of venue? Plaintiff’s affidavit for a change of venue is as follows:
"* * * That he is the plaintiff in the above-entitled action; that he is a resident of McPherson county, state of Kansas, and is engaged in the business of the practice of law; that there is a prejudice existing in this county against affiant, but that the same is without any just cause, and prevails generally throughout the county, especially among such citizens as usually compose the juries of the district court of said county; that the affiant has considerable acquaintance with the citizens of this county, and this affiant states that a fair and impartial trial of the above-entitled action by a jury cannot be had by the said John F. Hanson, the plaintiff therein, in the county of McPherson, state of Kansas, where said suit is pending; that the judge of the district court in and for said county and state is disqualified to sit in the trial of said cause, by reason of the fact that he is biased and prejudiced in favor of the said defendants; that the plaintiff now has a suit pending in the district court of McPherson county, Kan., for damages for alleged malicious rulings and alleged proceeding, without jurisdiction, against the said judge, and this affiant states that a fair and impartial trial of the above-entitled action cannot be had by the said John F. Hanson, the plaintiff therein, in the county of McPherson, state of Kansas, where said suit is pending."
Section 57 of the Civil Code (Gen. St. 1909, § 5650) in part is:
"In all cases in any of the district courts of this state in which it shall be made to appear that a fair and impartial trial cannot be had in the county where the suit is pending, or when the judge is interested or has been of counsel in the case or subject-matter thereof, or is related to either of the parties, or otherwise disqualified to sit, the court may, upon application of either party, change the place of trial to some county where the objection does not exist."
This affidavit is not sufficient to compel a change of venue because of the prejudice of the inhabitants of McPherson county.
"A change of venue on account of the prejudice of the inhabitants of the county against the defendant should not be granted, unless it is made to appear, to the satisfaction of the court, that the defendant cannot have a fair trial in such county on account of such prejudice." State v. Bassnett, 80 Kan. 392, syl. par. 3, 102 P. 461.
"When a trial judge is conscious that he has no prejudice against a defendant, he is justified in refusing a change of venue asked for on the ground that he is prejudiced." State v. Sexton, 91 Kan. 171, syl. par. 2, 136 P. 901.
The court is not bound by the statements in the affidavit as to his disqualification. Hanson v. Hanson, 86 Kan. 622, 624, 122 P. 100; In re Smith, 73 Kan. 743, 85 P. 584.
That no counter affidavits were filed makes no difference. State v. Tawney, 81 Kan. 162, 164, 105 P. 218, 135 Am. St. Rep. 355.
2. It appears that, in calling the jury to the box, the clerk called the names of jurors from slips of paper on which the names were written, and, when the name of an absent or excused juror was drawn, the slip was laid aside and name not called. How this prejudiced the plaintiff does not appear. Neither does it appear that the jury was not a fair jury, nor that any particular juror was incompetent. This should be treated as a challenge to the whole array of jurors, otherwise there is nothing before this court.
"A challenge to an array of jurors ought not to be sustained on account of mere irregularities in the drawing of the jurors, or mere informalities on the part of the officers charged with the drawing of the same. * * *" State v. Jenkins, 32 Kan. 477, syl. par. 1, 4 P. 809.
See A., T. & S. F. R. R. v. Davis, 34 Kan. 199, 204, 8 P. 146; State v. Whisner, 35 Kan. 271, 279, 10 P. 852; State v. Donaldson, 43 Kan. 431, 433, 23 P. 650; State v. Frazier, 54 Kan. 719, 721, 39 P. 819; Wood v. McAlpine, 85 Kan. 657, 660, 118 P. 1060.
3. The plaintiff complains of the instructions. There is no attempt to abstract any of the evidence introduced on the trial.
"Where none of the evidence appears in the record, and there is no statement of what it tended to prove, or that it raised the questions on...
To continue reading
Request your trial
-
Bisagno v. Lane
...is rendered against him, obtain a new trial, simply because he was surprised at the evidence presented.' (Syl. 3). See also Hanson v. Kendt, 94 Kan. 310, 146 P. 1190. A plaintiff may dismiss his action without prejudice any time before final submission to the court or jury, G.S.1935, 60-310......
-
J. R. Watkins Co. v. Hanson
...regarded as nullifying the verdict. Long ago that question was answered and decided, contrary to appellant's position, in Hanson v. Kendt, 94 Kan. 310, 146 P. 1190. Moreover this court is committed to the rule that, absent any objections to a verdict until after the jury is discharged, a li......
-
Haughton v. Judsen, 42972
...by defendant's automobile; Wilson v. McCarty, 156 Iowa 660, 137 N.W. 920, an action for breach of promise of marriage; Hanson v. Kendt, 94 Kan. 310, 146 P. 1190, 1191, an action for assault and battery; Ambrose v. Allen, 113 Cal.App. 107, 298 P. 169, a negligence action. In Hawkes v. Crofto......
-
Linn County Bank v. Grisham
...ordinarily conclusive. (The State v. Tawney, 81 Kan. 162, 164, 105 P. 218; The State v. Sexton, 91 Kan. 171, 136 P. 901; Hanson v. Kendt, 94 Kan. 310, 313, 146 P. 1190; Miller v. Kerr, 94 Kan. 545, 547, 146 P. 1159.) failure of Rush to plead his willingness to perform his part of the contra......