The Clyde Milling and Elevator Company v. Buoy

• Decision Date: 08 April 1905
• Docket Number: 14,094
• Citation: 80 P. 591,71 Kan. 293
• Parties: THE CLYDE MILLING AND ELEVATOR COMPANY v. JAMES BUOY
• Court: Kansas Supreme Court

80 P. 591

71 Kan. 293

THE CLYDE MILLING AND ELEVATOR COMPANY v. JAMES BUOY

No. 14,094

Supreme Court of Kansas

April 8, 1905

Decided January, 1905.

Error from Cloud district court; HUGH ALEXANDER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

PRACTICE DISTRICT COURT--New Trial. A motion for a new trial based upon several grounds was sustained by the court upon one of them and "no other." This was equivalent to an explicit denial of the motion on all other grounds.

PRACTICE, SUPREME COURT--Limitation of Action. An order denying a motion for a new trial in whole or in part is a final order, and if it is desired to have the same reversed in the supreme court proceedings must be commenced within one year thereafter.

DAMAGES--Interest. It is error to allow interest on a verdict for unliquidated damages for the time between its finding and the rendition of the judgment thereon.

Park B. Pulsifer, and Dwight M. Smith, for plaintiff in error.

W. W. Caldwell, and A. L. Wilmoth, for defendant in error.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

A question of practice first demands our attention. This case was tried upon the issues of fact joined on the 18th of September, 1902. At the close of the plaintiff's evidence defendant interposed a demurrer thereto, which the court overruled. The case was then proceeded with, and the jury returned its general verdict and special findings in favor of plaintiff. In due time the defendant's motion for judgment on the special findings was filed and denied, after which, his motion for a new trial coming on to be heard, the following proceedings, as shown by the journal entry, were had, on September 23, 1902:

"The court, having considered said motion and heard the argument of counsel, doth allow the same on the ground following, and for no other ground: That the court committed error in refusing to sustain the demurrer filed and presented by the defendant to the evidence introduced by the plaintiff; the court holding that under the evidence presented the plaintiff was not entitled to recover, and that the case should not have been submitted to the jury."

A new trial was thereupon ordered. From that order the plaintiff prosecuted proceedings in error to this court, where it was held that there was evidence sufficient to go to the jury on behalf of the plaintiff, and the order of the district court was reversed, with "directions to enter judgment upon the findings and verdict." (Buoy v. Milling Co., 68 Kan. 436, 75 P. 466.) The case was taken up the second time by the district court on April 5, 1904, upon the motion of the plaintiff for judgment in his favor, as directed by the mandate of this court, and without further trial or proceedings of any kind judgment was so rendered for the amount of the verdict, with interest thereon at six per cent. per annum from the date of the verdict; that is, the judgment included not only the amount named in the verdict, but interest thereon up to the date of the judgment. To reverse this judgment the milling company prosecutes this proceeding, counting upon no other errors, with one exception, than such as were committed by the court during the trial of the case upon its merits in September, 1902; so that the question of practice is whether it may now be heard as to these matters.

It insists that prior to the rendition of the judgment against it on April 5, 1904, it, not having been previously harmed, had nothing of which to complain, and, hence, could not have maintained a proceeding in this court to reverse a judgment which had not been rendered; that the court having granted it a new trial it was satisfied therewith, and had a right to rest thereon until the result of such new trial should be known.

We cannot agree to these contentions. The action of the court in sustaining the motion for a new trial in September, 1902, for no other ground than that the court committed error in refusing to sustain the demurrer to the evidence, was in effect the denial of the motion upon all other grounds. That is the necessary implication. The determination of a motion need not necessarily be in explicit words; it may be implied. So the effect of this action by the court was to deny the motion in part and sustain it in part. (14 Encyc. Pl. & Pr. 171.) Now, the moment that the court denied or allowed the motion for a new trial in whole or in part, either party...