Voth v. Thompson

• Decision Date: 12 November 1955
• Docket Number: No. 39866,39866
• Citation: 178 Kan. 539,289 P.2d 733
• Parties: Walter VOTH, Appellee, v. Russell V. THOMPSON and J. C. Wilkins, Appellants; Robert Rush, a minor and Don I. Rush, as the father and natural guardian of Robert Rush, Appellees.
• Court: Kansas Supreme Court

Page 733

289 P.2d 733

178 Kan. 539

Walter VOTH, Appellee, v. Russell V. THOMPSON and J. C. Wilkins, Appellants; Robert

Rush, a minor and Don I. Rush, as the father and

natural guardian of Robert Rush, Appellees.

No. 39866.

Supreme Court of Kansas.

Nov. 12, 1955.

Syllabus by the Court.

1. Rules governing the modification and vacation of judgments during, and after, the term at which they are rendered, stated, considered, discussed and applied.

2. Under the provisions of G.S.1949, 20-1020, the September 1954 term of the district court of Rice County expired by operation of law on January 3, 1955, that being the last day preceding commencement of the next term of such court on January 4, 1955.

3. The record in an action, to recover damages for injuries sustained by persons and property in a motor vehicle collision, wherein the district court of Rice County rendered a judgment non obstante in favor of defendants and against the plaintiffs on December 13, 1954, during the September 1954 term of court and then attempted to vacate such judgment and grant all parties a new trial at the January 1955 term of court examined, and held, that after the expiration of the September 1954 term the district court had no power to modify or vacate the judgment of December 13, 1954, except in accord with the express provisions of the code of civil procedure.

Evart Mills, McPherson, for appellants.

Arthur C. Hodgson, Lyons, John F. Hayes, Hutchinson, on the brief, for appellees.

PARKER, Justice.

This action stems from a collision between motor vehicles at a highway intersection and a brief factual statement of the events leading up to its institution, trial and disposition in the court below is all that is required to insure a proper understanding of the all decisive appellate issue.

On January 21, 1953, near Little River, Kansas, two motor vehicles collided at the intersection of U. S. Highway 50N and a blacktop county road, commonly known as Moll Boulevard. One of the vehicles involved in the collision was a Ford truck belonging to Walter Voth, a farmer. It was loaded with sand and was being operated by Robert Rush, then eighteen years of age, in an easterly direction on the highway. The other vehicle was an IHC truck which was carrying a water tank and was owned by J. C. Wilkins, also a farmer. It was proceeding north on the blacktop road and was being driven by Russell V. Thompson. Vision at the southwest corner of the intersection was very restricted.

Following the collision Voth sued Wilkins and Thompson for injuries sustained to his truck. Thereafter these defendants requested that Rush be made a party defendant in the action. This was done. Thereupon they filed an answer and counterclaim against Voth and Rush to recover damages for the Wilkins truck and for personal injuries sustained by Thompson in the collision. Later Voth and Rush answered, denying all claims of negligence on which their liability for the collision was predicated. In addition Rush, who had been very seriously injured at the time of the accident, filed a cross petition in which he claimed damages for his injuries.

After what appears from the record to have been a fair trial a jury returned a general verdict, along with its answers to 12 special questions submitted by the court, against Wilkins and Thompson in favor of Voth for damages to his truck and Rush in a substantial amount as damages for the personal injuries he had sustained in the collision.

During the trial defendants, Wilkins and Thompson, demurred to the evidence presented by Voth and Rush on the ground they had not proven facts sufficient to constitute a cause of action and for the further reason such evidence conclusively showed them to be guilty of contributory negligence which barred their recovery. This demurrer was overruled. Later Voth and Rush demurred to the evidence of the defendant cross petitioners, Wilkins and Thompson, on the ground it failed to prove a cause of action against either demurrant and disclosed such cross petitioners were guilty of contributory negligence as a matter of law. This demurrer was sustained.

Within three days after the jury's verdict the defendants filed a motion for a new trial on all issues. At the same time they moved to set aside the answers to five of the special questions and for judgment non obstante upon the answers to the remaining seven questions. Thereafter, and within five days after the rendition of the verdict, they filed an amended motion for a new trial wherein they withdrew the original motion and, on the same grounds as therein set forth, asked for a new trial limited to the single issue of contributory negligence of Voth and Rush.

After hearing and argument decision on the foregoing motions was taken under advisement by the trial court until December 13, 1954. On that date it held (1) that the motion to set aside answers to special questions should be and was overruled; (2) that the amended motion for a new trial should be and was overruled; and (3) that the motion for judgment non obstante should be and was sustained, and then rendered judgment for defendants (Wilkins and Thompson) against both Voth and Rush for costs for the reason that it found, from the answers to special questions found by the jury, that Rush was guilty of contributory negligence sufficient to bar his, and the plaintiff Voth's, recovery.

On Tuesday, January 4, 1955, which all parties concede was on the first day of the January term of the Rice County District Court as fixed by statute, G.S.1949, 20-1020, the trial court, after announcing that it was taking its action prior to the opening of the January 1955 term, held that its ruling, dated December 13, 1954, was erroneous and therefore should be and was set aside.

Thereafter, and on January 11, 1955, obviously on the assumption the case was open and subject to consideration at the January 1955 term, the trial court, after stating the reasons for its action, found that in all fairness to the plaintiff and to the defendants a new trial should be had in the case. Thereupon, stating that it had set aside its ruling of December 13, 1954, before the convening of the January 1955 term, it (1) overruled the motion of defendants (Wilkins and Thompson) for judgment non obstante; (2) overruled their motion to set aside answers to the special questions; and (3) sustained their amended motion for a new trial but held that in so doing it was granting a new trial on all issues in the cause between the parties, and not merely as to the issue of contributory negligence, if any, of plaintiff Voth and defendant Rush.

Subsequently defendants gave notice of appeal from the ruling of January 4, 1955, setting aside the ruling and judgment of December 13, 1954; and from the ruling of January 11, 1955, in which a new trial was granted, the notice of appeal stating the appeal from the order of January 11, 1955, was made without waiving their rights to contend the court was without jurisdiction to make and render its judgment and decision of January 4, 1955.

One of several errors assigned by appellants, if it be upheld, will require a reversal of the judgment and must be disposed of before attention can be given to any of the others. It charges the court erred on January 4, 1955, in setting aside the judgment it had theretofore rendered on December 13, 1954. Shortly stated, appellants' position with respect to this matter is that such ruling was made by the district court of Rice County at the January 1955 term of court in an attempt to modify and vacate the judgment it had rendered at the September 1954 term of court on December 13, 1954, and is therefore void and has no effect on the original judgment. On the other hand, and for present purposes just as briefly stated, appellees' position is that the ruling of which appellants complain, even though entered on Tuesday, January 4, 1955, was made at the September 1954 term of the district court of Rice County and hence resulted in a modification and vacation of the original...