Kansas City
| Citation | 55 Kan. 186,40 P. 288 |
| Court | United States State Supreme Court of Kansas |
| Decision Date | 30 April 1895 |
| Parties | THE KANSAS CITY, FORT SCOTT & MEMPHIS RAILROAD COMPANY v. HELEN A. BERRY |
Error from Bourbon District Court.
ACTION by Helen A. Berry, against the Railroad Company, to recover damages for the killing of her husband. The facts fully appear in the opinion herein, filed April 30, 1895.
Wallace Pratt, C. W. Blair, and I. P. Dana, for plaintiff in error:
The judgment is not according to the mandate. The mandate required the court below to enter judgment on the "general verdict in favor of plaintiff." The only amount named in that verdict was $ 5,000; but judgment was rendered for $ 6,298, and under the laws of the state interest at 6 per cent. has been accumulating on the latter sum ever since. This was not a compliance with the mandate but it was in flat disobedience of its terms, and the judgment should be reversed for that reason, if for no other and this, too, irrespective of the question whether this court could have required the court below to add interest to the verdict or not. It certainly did not direct interest to be added, and therefore the district court had no right to add it. In doing so it disregarded the mandate, and its action was erroneous. The judgment should conform to the mandate, without regard to the proceedings subsequent to its rendition, which in cases like this should be the same as though the district court had rendered the judgment without any mandate and in the ordinary course of a trial.
Until the mandate from this court was filed in and presented to the district court on May 16, 1894, the verdict on which the district court then rendered judgment never was or had been a verdict in contemplation of law.
At common law, interest was not allowed in any case; interest was treated as usury is now, and the charging or collecting of it was a punishable offense. 11 Am. & Eng. Encyc. of Law, 379. In this country, the statutes of all the states allow interest, but interest is held to be entirely the creature of statute and only allowed where so authorized. Id 380, and cases cited under note 1. At common law, interest could be recovered on a judgment only in a separate proceeding, id. 391; but in this country the right is given by statute in most states to include interest on the judgment in the execution issued thereon. Interest is generally allowed by law on two grounds: First, by contract, express or implied; and, second, by way of damages, either for default on payment of a debt, or for a use or benefit derived from the money of another. Id., notes 2, 3 and 4. See Kelsey v Murphy, 30 Pa. St. 340.
A difference has sometimes been recognized between a case where the party, against whom the verdict is rendered, delays the entry of judgment thereon, and a case where such delay is due to other causes. This was so in Gibson v. Enquirer, 2 Flippin, 88, where a United States district judge held that a verdict having been rendered for plaintiff, and defendant. having filed a motion for a new trial, which was postponed from time to time, interest should be allowed from the date of rendering a verdict. This case is further distinguishable from the case at bar in that the federal judge further supported his ruling by announcing that, as the jury might calculate interest upon the amount of damages actually sustained and add it to the verdict under the Ohio rules and statutes (he was considering a case controlled by the Ohio law), it was proper to allow plaintiff interest upon the sum returned by the jury in his favor from the date it was so returned. See Bowman v. Wilson, 2 McCr. 394; The Rebecca, Clyde, 12 Blatchf. 403.
It has been held that without express legislation, neither contracts, judgments nor decrees would bear interest. Hamer v. Kirkwood, 25 Miss. 95; Reece v. Knott, 3 Utah, 451. This must be as true of a verdict as of a judgment, and certainly there is no provision or intimation in the statutes of Kansas that interest will be allowed on a verdict, as there is in some states. See Redfield v. Iron Co., 110 U.S. 174; Gen. Stat. of 1889, P P 3497, 3500, 3501, 4505; Church v. Goodin, 22 Kan. 527; Railroad Co. v. Gabbert, 34 id. 132-136; Simmons v. Garrett, McCahon, 82; Educational Association v. Hitchcock, 4 Kan. 36; Wilson v. Means, 25 id. 83.
E. F. Ware, for defendant in error, submitted Gibson v. Enquirer, 2 Flippin, 88.
OPINION
The facts in this case as it was first presented to this court appear in 52 Kan. 759. This court, on the case then submitted, held that the district court erred in refusing to receive and enter the verdict of the jury, and directed that judgment be entered in favor of the plaintiff for the amount of the verdict. A mandate was duly issued and filed in the district court of Bourbon county, and on the 16th day of May, 1894, it was presented to the court with a motion for judgment thereon. Thereupon the defendant filed a motion for a new trial on various grounds. This motion was overruled, and the defendant excepted. A journal entry incorporated in the case-made recites:
"Now on this May 16, 1894, came on to be heard the above-entitled cause on plaintiff's motion for judgment on the supreme court's mandate filed here May 9, 1894, the plaintiff appearing by her attorney, E. F. Ware, and defendant by its attorney, I. P. Dana. Defendant asked the court to allow it a reasonable time, before rendering any judgment in plaintiff's favor, to file here a transcript of the testimony introduced at the trial of the cause in January, 1890, and a transcript of the charge given by the judge to the jury at that trial, and also asked the court for leave to present to it for review errors of law which occurred at said trial; each of which requests and applications the court refused and overruled, and to each such ruling of the court defendant at the time duly excepted and excepts. Thereupon, arguments having been heard on plaintiff's said motion, the court doth order, adjudge and decree: First, That the judgment heretofore rendered herein on January 18, 1890, which is recorded in journal "P," at page 433 of the records of this court, be set aside and held for naught, said judgment being the one rendered in favor of the defendant and against the plaintiff for costs; second, that the plaintiff have and recover of and from the defendant the sum of $ 5,000, the amount named in the verdict of the jury in favor of plaintiff, filed January 18, 1890, together with 6 per cent. interest thereon from the date of said verdict, being a total sum of sixty-two hundred and ninety-eight ($ 6,298) dollars.
Twenty-five days were given the defendant to make and serve a case for this court. The defendant then filed a motion for rehearing, which was overruled. (52 Kan. 774.)
Counsel for plaintiff in error argue with great earnestness and force that the general verdict in favor of the plaintiff for $ 5,000 and the special findings of fact were never recognized by the trial court as verdicts until after the mandate of this court was presented directing that they be received and filed and judgment entered thereon; that at the time of the trial the court refused to receive or recognize these verdicts as verdicts, but directed a general verdict in favor of the defendant, on which it entered judgment; that however much the court might have erred in the conduct of the trial however unsupported by law or the facts the verdict, on which this court directed judgment to be entered might be, the defendant, having a verdict in its favor and a judgment thereon, not only was not called on to file a motion for a new trial, but that there was absolutely no foundation for any such motion. It is further insisted that vitality was first given to the verdict by the order and judgment of this court, and that not until its mandate was presented to the district court did the verdict of the jury have any force as a verdict; that the...
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