Sanders v. Wakefield

• Decision Date: 09 February 1889
• Citation: 20 P. 518,41 Kan. 11
• Parties: B. C. SANDERS v. GEORGE W. WAKEFIELD
• Court: Kansas Supreme Court

20 P. 518

41 Kan. 11

B. C. SANDERS v. GEORGE W. WAKEFIELD

Supreme Court of Kansas

February 9, 1889

Error from Cloud District Court.

ACTION upon a note, and a mortgage given to secure its payment. The facts are substantially stated in the opinion. The defendant Sanders brings the case here.

Judgment affirmed.

L. J Crans, for plaintiff in error.

Sturges Kennett & Peck, for defendant in error.

HORTON C.J. All the Justices concurring.

OPINION

HORTON, C. J.:

The facts in this case, so far as they are necessary to be considered, are substantially as follows: On the 14th day of October, 1873, Bazil C. Sanders executed to George Clark his promissory note for $ 802.50, payable one year after date; George Clark was the agent of George W. Wakefield, who resided in Ohio, and loaned the money to Sanders for Wakefield; Clark indorsed and transferred the note to Wakefield. At the time of the execution of the note, in order to secure the payment of the same, Sanders executed to Clark his mortgage upon certain real estate in Cloud county. On August 27, 1883, Wakefield commenced this action to recover upon the promissory note, and also to foreclose the mortgage. In his petition, he alleged that Sanders paid $ 5 upon the note on August 28, 1878. On the 19th day of September, 1883, Sanders filed an answer containing, first, a general denial; second, a plea of the statute of limitations. On the 4th of November, 1885, Sanders, with leave of the court, filed his third amended answer, which was verified. This admitted the execution of the promissory note and mortgage sued on; but set up as the only defense, the five-years statute of limitations. Trial had on the 2d day of March, 1886, by the court without a jury. Upon the trial, but one question of fact was in issue: that is, was the sum of $ 5, which was indorsed on the note, paid on August 28, 1878, as alleged by Wakefield, or on August 23, as claimed by Sanders? After hearing the evidence and the arguments of counsel, the court rendered judgment for Sanders. A motion for a new trial was filed, and the case continued for hearing to August 20, 1886. Upon that day the court sustained the motion, granted a new trial, and continued the case until the next term. On the 4th of November, 1886, the case was tried before the court with a jury. During the trial, Wakefield asked leave of the court to amend his answer so as to show more specifically the payments claimed by him to have been made upon the note in controversy. This motion was denied. The jury made and returned the following special findings of fact:

"Did B. C. Sanders let J. M. Tibbitts (the agent and attorney of Geo. W. Wakefield) have five dollars during the month of August, 1878? Ans.: Yes.

"On what day of August, 1878, did B. C. Sanders let J. M. Tibbitts have five dollars, if ever? A. On the 28th day of August, 1878.

"If B. C. Sanders let J. M. Tibbitts have five dollars in August, 1878, when he let him have the money, was it intended by Sanders at that time as an absolute payment on the note in suit, or as an accommodation to Tibbitts? A. Absolute payment."

The jury also returned a general verdict for $ 2,049.35. Subsequently the court rendered judgment in favor of Wakefield against Sanders for the amount sued for, and also for a foreclosure and sale of the mortgaged premises. Sanders excepted, and brings the case here.

I. The first error complained of is, the action of the court in allowing a new trial on August 20, 1886. This court will not reverse an order of the district court granting a new trial, unless it can say beyond all reasonable doubt that the trial court has manifestly or materially erred with respect to some pure, simple, and unmixed question of law; and that, except for such error, the ruling of the trial court would not have been made as it was made, and that it ought not to have been so made. (City of Sedan v. Church, 29 Kan. 190; Brown v. Railroad Co., 29 id. 186, and authorities cited.) The motion for a new trial contained about all of the statutory grounds; and the court, in sustaining the motion, did not state for what particular reason the motion was granted. We cannot, therefore, say that the district court erred with reference "to some pure, simple, and unmixed question of law." Even if the affidavits presented in support of the motion for a new trial were somewhat irregular, indefinite, and failed to show diligence, as is claimed, yet, as the case was tried on the 2d day of March, 1886, by the court, without any jury, and as trial courts are vested with very large and extended discretion in the granting of new trials, and as it does not appear that the trial court acted solely upon the affidavits presented, the exceptions taken to them are immaterial. New trials ought always to be granted whenever, in the opinion of the trial court, the party asking for a new trial has not in all probability had a reasonably fair trial, and has not in all probability obtained or received substantial justice. ( City of Sedan v. Church, supra.)

II. The next alleged error occurred at the trial on the 4th of November, 1886. Counsel say that Wakefield had inserted in his petition a paragraph which was scandalous, and should have been expunged; that it was read by his counsel in the opening of the case to prejudice the jury; and that his counsel also said in the presence of the jury, during an argument against the admission of certain evidence, that "with the records piled with the perjury which this defendant has committed, as the files of this court will show." Sanders made no motion to purge or correct the petition, or to strike out any portion. When his...