The Barber Asphalt Paving Company v. The City of Topeka

• Decision Date: 05 November 1897
• Docket Number: 208
• Parties: THE BARBER ASPHALT PAVING COMPANY v. THE CITY OF TOPEKA
• Court: Kansas Court of Appeals

50 P. 904

6 Kan.App. 133

THE BARBER ASPHALT PAVING COMPANY v. THE CITY OF TOPEKA

No. 208

Court of Appeals of Kansas, Northern Department, Eastern Division

November 5, 1897

Opinion Filed November 11, 1897.

Error from Shawnee Circuit Court. Hon. J. B. Johnson, Judge. Reversed.

Judgment reversed.

Gleed Ware & Gleed, for plaintiff in error.

W. A S. Bird, City Attorney, for defendant in error.

OPINION

MAHAN, P. J.

Upon the authority of Dudley v. Barney (4 Kan.App. 122, 46 P. 178), and Hover v. Tenney (27 Kan. 133), the motion to dismiss must be sustained unless the record discloses some error of which the plaintiff may avail itself without a motion for a new trial; because it does not appear from the record that the motion for a new trial was filed at the term of court wherein the judgment was rendered.

The assignments of error are as follows: First. The court erred in overruling plaintiff's demurrer to the fourth defense set up by the defendant in its answer. Second. The court erred in admitting evidence, etc. Third. The court erred in overruling the plaintiff's motion for a new trial.

The presumption being that the court overruled the motion for a new trial because it was not filed at the term when the judgment was entered, the third assignment fails; and the second assignment cannot be considered, because the error, if any, was one occurring at the trial and was waived by the failure to file the motion for a new trial. Was the failure to file the motion for a new trial a waiver of the error in overruling the demurrer, if such order was error? Or, in other words, was a motion for a new trial necessary to authorize this court to review that order? Under the Code there are issues of law and issues of fact. § 266, Code. A new trial is the re-examination of an issue of fact, in the same court, after verdict, report, or decision; and the Code prescribes the grounds therefor. § 306, Code. A demurrer presents an issue of law, and a judgment thereon is not reviewable upon a motion for a new trial. It is only where the action of the court in the course of the trial of issues of fact is sought to be reviewed, that a valid motion for a new trial and order thereon by the trial court is a necessary precedent fact. Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36, 39 P. 718; Water-Supply Co. v. Dodge City, 55 id. 60; Nute v. Glucose Co., 55 id. 225. Hence we conclude the judgment of the court in overruling the defendant's demurrer to the fourth defense may be reviewed, notwithstanding there was no motion for a new trial. Consequently, the motion to dismiss must be denied.

The action was upon a paving contract, in writing, between the Barber Paving Company and the City, whereby the Company sought to recover an alleged balance for paving that part of Quincy Street in the City of Topeka granted by ordinance to the ...