Wagner v. The Atchison
| Citation | 73 Kan. 283,85 P. 299 |
| Decision Date | 10 March 1906 |
| Docket Number | 14,534 |
| Court | United States State Supreme Court of Kansas |
| Parties | J. F. WAGNER v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY |
Decided January, 1906.
Error from Kingman district court; PRESTON B. GILLETT, judge.
SYLLABUS BY THE COURT.
1. PRACTICE, SUPREME COURT--Review of Judgment on Pleadings and Opening Statement. It is not necessary to file a motion for a new trial before bringing to this court for review a decision granting a motion for judgment upon the pleadings and the opening statement of counsel and sustaining an objection to the introduction of any evidence in the case.
2. PRACTICE, SUPREME COURT--Cases Disapproved. The case of Gruble v. Ryus, 23 Kan. 195, and other cases holding that a motion for a new trial is a prerequisite to a review of a decision sustaining a demurrer to evidence disapproved.
C. W Fairchild, for plaintiff in error.
William R. Smith, O. J. Wood, and Alfred A. Scott, for defendant in error.
OPINION
The defendant in error moves to dismiss this proceeding for want of a lawful case-made. When the cause came on for trial in the district court a jury were impaneled and sworn, and the plaintiff made a statement of his case and of the evidence by which he expected to sustain it. The defendant moved for judgment in its favor upon the pleadings and the plaintiff's statement. The plaintiff then asked and obtained leave to amend his reply. The amendment having been made, the defendant renewed its motion for judgment, and objected to the introduction of any testimony in the case. The motion and objection were both sustained, and judgment was rendered against the plaintiff for costs. On the same day a motion for a new trial was filed, which was denied some thirty days later. When the motion for a new trial was disposed of an order was made extending the time for making and serving a case-made. If no motion for a new trial was necessary the filing of such a motion did not enlarge the time within which an extension could be granted, and jurisdiction to make the order referred to was lost. ( Atkins v. Nordyke, 60 Kan. 354, 56 P. 533.) Section 306 of the code of civil procedure (Gen. Stat. 1901, § 4754) contains the following provisions:
From this language it is plain that a motion for a new trial has no function to perform unless an issue of fact has been fully determined and the determination has been embodied in one of three specified forms. Not only must there have been a trial, a judicial examination of the issues of fact, but those issues must have been definitely settled by the verdict of a jury or its equivalent, final and conclusive upon the facts unless vacated. Until that stage of the proceedings in an action has been reached the condition precedent to the. filing of a motion for a new trial does not arise; the single circumstance capable of creating a field for its operation has not occurred; the only subject-matter vulnerable to its attack does not exist.
There is no such thing as a new trial of issues of law. Questions relating to the determination of those issues may be investigated by this court without previous reexamination by the trial court. Whenever there has. been a trial and a verdict or report or decision on the facts, only those errors of law occurring at the trial which inhere in and vitiate the conclusion of fact need be called to the attention of the trial court by a motion for a new trial. If the facts have been agreed to, or if issues upon the facts have been eliminated, or if, for any reason, the controversy so shape itself that its determination depends upon a question of law, and the normal end of a trial of an issue of fact--a verdict, if tried by a jury, a report, if tried by a referee, a decision, if tried by the court--is not reached there is no occasion to use a motion for a new trial. If it be claimed that error of law has been committed so that the proceeding has fallen short of a verdict, report or decision upon the facts, the aggrieved party may ask this court to secure to him, not a new trial, but a trial in the complete sense of the term; not a reexamination of the...
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...upon motion for a new trial, had such matter been specified as a reason for granting such new trial.' In Wagner v. Atchison, T. & S. F. Ry. Co., 73 Kan. 283, 85 P. 299, the nonsuit was granted upon the complaint and opening statement of plaintiff's counsel, and before any evidence was intro......
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...Putnam Co., 70 Okla. 99, 158 P. 297, this court quoted and approved the language of the Supreme Court of Kansas in Wagner v. A., T. & S. F. R. Co., 73 Kan. 283, 85 P. 299 (referring to what is section 5033, Rev. Laws 1910), as follows:"From this language it is plain that a motion for new tr......
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