Spottsville v. Western States Portland Cement Co.

• Decision Date: 06 February 1915
• Docket Number: 19259
• Citation: 94 Kan. 258,146 P. 356
• Parties: SPOTTSVILLE v. WESTERN STATES PORTLAND CEMENT CO.
• Court: Kansas Supreme Court

146 P. 356

94 Kan. 258

SPOTTSVILLE v. WESTERN STATES PORTLAND CEMENT CO.

No. 19259

Supreme Court of Kansas

February 6, 1915

Syllabus

After the plaintiff had introduced certain evidence before the court, the defendant being in default, a judgment for $1 and costs was rendered, which was promptly paid into court by the defendant, but not received by the plaintiff. Two days after the rendition of such judgment, the journal entry of which recited that the injury was caused by the defendant’s negligence, the plaintiff filed a motion to set it aside and grant a new trial, and the court heard evidence thereon and granted the motion. Held, that such order was valid and proper.

At the time of the injury, the Workmen’s Compensation Act of 1911 (Laws 1911, c. 218, § 8) was in force. There was neither allegation nor proof that the defendant corporation had elected to come within its provisions, but there was some evidence that it had not done so. Held, that the court properly assumed and instructed that such an election had not been made.

A complaint of the rejection of evidence cannot be considered when such complaint is based on nothing appearing in the record.

Appeal from District Court, Montgomery County.

Action by David Spottsville against the Western States Portland Cement Company. From judgment for plaintiff, defendant appeals. Affirmed.

Thos E. Wagstaff, of Independence, for appellant.

Hal R Clark, of Independence, and Charles D. Welch, of Coffeyville for appellee.

OPINION

WEST, J.

The plaintiff sued for personal injuries sustained September 14, 1912, by the fall of a suspended rock in the defendant’s quarry. The action was begun February 12, 1913, and on March 18th thereafter, the defendant being in default of an answer, the plaintiff produced certain evidence, and a judgment was rendered in his favor by the court for $1 and costs, which the defendant paid into court. March 20th the plaintiff filed a motion for a new trial setting up accident and surprise and misunderstanding by counsel of orders and instructions of the court, by reason whereof plaintiff was not afforded sufficient opportunity to present his evidence and be heard on the merits, and because the judgment was in part contrary to the plaintiff’s equitable rights. On April 20, 1913, this motion was sustained, and the plaintiff was ordered to pay the costs. Thereupon an amended petition was filed realleging the grounds set out in the original petition to which an answer was filed setting up a general denial, and the former judgment alleging that it had never been lawfully set aside, also alleging contributory negligence and assumption of risk. Later a plea in abatement was filed setting up in detail the former proceeding and judgment to which plea a demurrer was sustained. The trial, November, 1913, resulted in a verdict for the plaintiff, and the defendant appeals and complains of the order overruling the plea in abatement and the act of the court in not receiving evidence to support the defense of contributory negligence and assumption of risk; of error in an instruction that the defendant had not elected to come within the provisions of the Workmen’s Compensation Act; and in refusing evidence upon that question; and that the judgment was not sustained by sufficient evidence.

It is contended that the court had no jurisdiction to set aside the judgment first rendered after it had been paid, and that the motion did not come within sections 596 and 602 of the Civil Code (Gen. St. 1909, § § 6191, 6197), which preclude the setting aside of a judgment until it is adjudicated that there is a valid cause of action; but the record shows that the court found upon argument and consideration that the motion ought to be sustained, which implies an adjudication that there was a valid cause of action. Moreover, the plea in abatement set out an express finding by the court, at the rendition of the original judgment, that the plaintiff’s injury was...