Vilander v. Hawkinson

• Decision Date: 07 June 1958
• Docket Number: No. 40982,40982
• Citation: 326 P.2d 273,183 Kan. 214
• Parties: Beverly VILANDER, Appellee, v. A. J. HAWKINSON and Pete Hawkinson, Appellants.
• Court: Kansas Supreme Court

Page 273

326 P.2d 273

183 Kan. 214

Beverly VILANDER, Appellee, v. A. J. HAWKINSON and Pete Hawkinson, Appellants.

No. 40982.

Supreme Court of Kansas.

June 7, 1958.

Syllabus by the Court

1. By statute (G.S.1949, 60-3001) a new trial is defined as being a re-examination in the same court of an issue of fact after a verdict by a jury, report of a referee or a decision by the court--that is to say, a new trial recognizes and proceeds upon the assumption there has been a complete trial which, for sufficient reasons, has been set aside.

2. A mistrial is a nugatory trial and is equivalent to no trial--that is to say, a mistrial results where, before a trial is completed, the trial court concludes that there is some error or irregularity that prevents a proper judgment being rendered.

3. Plaintiff brought an action to recover for personal injuries and the matter proceeded to trial before a jury. Defendants' demurrer to plaintiff's evidence on the ground of insufficiency thereof to make out a case, was overruled, whereupon defendants proceeded to introduce their evidence. During the cross-examination of their first witness, defendants' motion for a mistrial, because of misconduct of plaintiff's counsel, was sustained and the jury was discharged. Defendants appealed from the order overruling their demurrer to plaintiff's evidence. Plaintiff filed a motion to dismiss the appeal. The record is examined and considered, and it is held: Under the facts, procedure and circumstances presented, and for the reasons set forth in the opinion, defendants are not entitled to a review of the order overruling their demurrer to plaintiff's evidence, and the appeal must be dismissed.

Harold E. Doherty, Topeka, John W. Brookens, Westmoreland, and G. Wayne Probasco, Topeka, with him on the briefs, for appellants.

Charles Rooney, Sr., Topeka, Charles Rooney, Jr., Topeka, with him on the briefs, for the appellee.

PRICE, Justice.

This was an action to recover for personal injuries sustained by plaintiff while operating an alleged defective hay-baler owned by defendants.

On defendants' motion a mistrial was declared. Defendants have appealed from certain adverse rulings hereafter mentioned.

Reference to allegations of the pleadings need not be made. Issues were joined and the action proceeded to trial before a jury. At the conclusion of plaintiff's evidence defendants demurred thereto on the ground it failed to establish a partnership between defendants; that it failed to prove a cause of action in favor of plaintiff and against defendants; that it showed, as a matter of law, that plaintiff was guilty of contributory negligence, and that it showed plaintiff to have assumed the risk. This demurrer was overruled. Defendants then proceeded to introduce their evidence, and during the cross-examination of their first witness the trial court, on defendants' motion, because of misconduct by plaintiff's counsel, declared a mistrial and discharged the jury.

Defendants appealed from orders overruling their demurrer to the petition, their motion to quash the service of summons, and their demurrer to plaintiff's evidence, and specify each of such rulings as error.

Plaintiff filed a motion to dismiss the appeal, contending that as a mistrial was granted all that transpired at the trial was a nullity and that defendants, having been granted a mistrial, cannot now question the sufficiency of plaintiff's evidence to make out a case. This court denied the motion to dismiss 'with right to renew at the hearing of the case on its merits.'

Plaintiff has renewed his motion.

At this point it should be mentioned that defendants have in effect abandoned their appeal from the rulings on their demurrer to the petition and the motion to quash the service of summons.

The question presented, therefore, is this--under the facts, procedure and circumstances related, are defendants entitled to appeal from the order overruling their demurrer to plaintiff's evidence?

Counsel have cited no decisions of this or any other court bearing directly on the question, and our limited research has failed to disclose any case specifically in point.

Under G.S.1949, 60-3302, an order that sustains or overrules a demurrer is appealable.

G.S.1949, 60-2914, provides that a jury may be discharged for any one of several reasons, among them being the inability to agree on a verdict. The next section, 60-2915, provides that in all cases where a jury is discharged during the trial or after the cause is submitted to it, the case may be tried again immediately or at a future time, as the court may direct.

The right of a defendant to appeal from an order overruling his demurrer to the plaintiff's evidence in instances where the jury has failed to agree has been recognized and upheld many times. We mention but a few of our decisions--Israel v. Lawrence, 126 Kan. 586, 270 P. 602; Coulter v. Sharp, 145 Kan. 28, 64 P.2d 564; Corr v. Continental Oil Co., 145 Kan. 78, 64 P.2d 30; Carver v. Farmers & Bankers Broadcasting Corp., 162 Kan. 663, 179 P.2d 195, and Gatz v. Church, 180 Kan. 15, 299 P.2d 81.

G.S.1949, 60-3001, defines a 'new trial' as follows:

'A new trial is a reexamination in the same court of an issue of fact after a verdict by a jury, report of a referee or a decision by the court. * * *' (Our emphasis.)

The right of a defendant to appeal from an order overruling his demurrer plaintiff's evidence, even though defendant sought and obtained a new trial, also has been recognized and upheld. Henderson v. National Mutual Cas. Co., 166 Kan. 576, 203 P.2d 250, and Minear v. Benefit Association of Railway Employees, 169 Kan. 199, 200, 218 P.2d 244.

In the Henderson case, at the close of plaintiffs' evidence, defendants' demurrer was overruled. Defendants submitted no evidence. The jury returned a verdict for plaintiffs and answered special questions. Defendants filed motions for a new trial, for judgment notwithstanding the verdict, for judgment on answers to certain special questions, and to set aside answers to various special questions. The court overruled the motions for judgment notwithstanding the verdict and for judgment on special findings, sustained the motion to set aside the answers to some of the special questions, and sustained defendants' motion for a new trial for the reason that the answers to some of the special questions were inconsistent with each other and with the general verdict. Notwithstanding their motion for a new trial was allowed, defendants appealed from the order overruling their demurrer to plaintiffs' evidence. In disposing of plaintiffs' contention that defendants were not entitled to be heard on their appeal from the order overruling their demurrer to plaintiffs' evidence, and in which contention reliance was had on Lewis v. People's State Bank, 145 Kan. 844, 67 P.2d 541, and Foust v. Mills, 128 Kan. 471, 278 P. 745, this court said:

'There is some support for plaintiffs' position in those opinions. We have re-examined the question, however. A demurrer to the evidence is made an appealable order by the provisions of G.S.1935, 60-3302. (Citing) Many times since then we have held that a dem...