Robinson v. Davis
| Decision Date | 09 November 1946 |
| Docket Number | 36599. |
| Parties | ROBINSON v. DAVIS. |
| Court | Kansas Supreme Court |
Rehearing Denied Dec. 13, 1946.
Appeal from District Court, Sumner County; Wendell Ready, Judge.
Action by M. A. Robinson against Walter E. Davis for reach of a lease contract. From orders overruling defendant's motion for a new trial after a jury's verdict for plaintiff sustaining plaintiff's motion for leave to amend his petition by increasing the sum sued for, and increasing the amount of the verdict and judgment thereon, defendant appeals.
Order overruling motion for new trial affirmed, orders sustaining motion for leave to amend petition and increasing the amount of the verdict and judgment set aside, and case remanded with instructions.
Syllabus by the Court
1. On appeal the record must be sufficient to support the specified errors.
2. All trial errors and irregularities must be shown by the record to have been presented to the trial court on a motion for new trial before they can be considered by this court on appeal.
3. A contention that the amount of a judgment or verdict is not supported by sufficient competent evidence must be shown by the record to have been asserted to the trial court in the hearing of a motion for new trial or it will not be considered by this court.
4. After a jury has returned its verdict and has been discharged a trial judge cannot amend the verdict by increasing the amount thereof to the extent of certain damages which the jury may, or may not, have considered in reaching its verdict.
Ed. T Hackney, of Wellington, for appellant.
W. J King, of Geuda Springs, for appellee.
In this case a tenant in a farm lease brought an action against his landlord for damages resulting from an alleged breach of contract. The landlord filed an answer which denied the breach of contract and asserted that the tenant was indebted to him for certain specified items. The case was submitted to a jury, which rendered a verdict in favor of the tenant for $393.29. The landlord filed a motion for a new trial. After the jury had been discharged the tenant filed a motion for leave to amend his petition by increasing the sum for which judgment was prayed and for an order increasing the amount of the verdict so that it would conform to the facts pleaded in the petition and the evidence introduced in support of the same. The trial court overruled the motion for a new trial; sustained the motion for leave to amend, and increased the amount of the verdict and the judgment thereon to the amount of $568.54. The landlord has appealed and contends that his motion for a new trial should have been sustained and that the court erred in increasing the amount of the verdict and in entering judgment for the increased amount.
1. The first question to be considered is whether the landlord is entitled to a new trial. The landlord contends that the trial court erred in the admission of certain testimony; that the judgment in favor of the tenant was excessive, and that the verdict of the jury was not supported by the evidence. This is not a case in which it is asserted that the verdict of the jury was not supported by any evidence so that the question became a matter of law but it is only contended that the competent evidence considered by the jury does not justify the amount of its verdict. The record in this court must be sufficient to present the specified errors. The abstract does not set forth a copy of the motion for new trial. The record does not disclose whether the asserted trial errors relative to the admission of evidence were called to the attention of the trial court at the time of the argument on the motion for a new trial. The record is also silent as to whether the contention that the judgment was not supported by sufficient competent evidence was called to the attention of the trial court in connection with the motion for a new trial. We cannot determine whether such alleged errors were asserted in the motion for a new trial. The abstract only discloses that at the time the motion for a new trial was argued the landlord presented his affidavit that a certain witness, if called, would testify as to having paid the tenant the sum of $20 for kaffir corn. No showing was made establishing due diligence on the part of the landlord in attempting to have the witness present at the trial. The journal entry of judgment discloses that the trial court disposed of the contention by holding that the case had been pending for more than two years and that, therefore, the landlord had failed to show reasonable diligence. The journal entry of judgment also discloses that the landlord, in presenting his argument for a new trial, asserted that the verdict was in whole or in part contrary to the evidence. In overruling the motion for a new trial on such ground, the court found that the discrepancy presented was too small to warrant the expense of a new trial and further that counsel for plaintiff had agreed to accept a remittitur to correct any variance. If any...
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Jeffers v. Jeffers
...considered on appeal, where it was not raised by motion for a new trial.' (Syl. p1.) That case was cited with approval in Robinson v. Davis, 162 Kan. 44, 174 P.2d 111, wherein it was said: '* * * Also, a contention that the amount of a judgment or verdict is not supported by sufficient comp......
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Bisagno v. Lane
...102 P.2d 1035; Schreiner v. Rothgarn, 154 Kan. 20, 114 P.2d 834; Kininmonth v. Carson, 156 Kan. 808, 137 P.2d 173. In Robinson v. Davis, 162 Kan. 44, 46, 174 P.2d 111, it was held that a transcript of all the evidence adduced at the hearing on a motion for a new trial is necessary in order ......
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McCarthy v. Tetyak, 41177
...to have been presented to the trial court on a motion for a new trial in order to be subject to appellate review. See Robinson v. Davis, 162 Kan. 44, 174 P.2d 111; Tucker v. Hankey, 173 Kan. 593, 250 P.2d 784; Place v. Kansas State Highway Commission, 174 Kan. 296, 255 P.2d 1004; State v. T......
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Dixon v. Prothro
...two prior Kansas cases which limit a court's power to amend a verdict by increasing the amount awarded by a jury. In Robinson v. Davis, 162 Kan. 44, 174 P.2d 111 (1946), a tenant in a farm lease brought an action against his landlord for damages resulting from an alleged breach of contract.......