Adams Express Co. v. Gregg, 23 Kan. 376

Adams Express Co. v. Gregg

23 Kan. 376 | Kan. | 1880

The opinion of the court was delivered by

Valentine, J.:

It is not certain that the court below, in granting to the plaintiff a new trial upon any terms, did not extend to him a degree of indulgence far beyond anything that he had a right to claim as a matter of right. And for this reason we think the plaintiff should have complied strictly and promptly with the terms imposed by the court. But as he did not do so, had he afterward any remedy for his failure? We would hardly think that he had. As the court below granted the new trial solely upon the condition that the plaintiff should pay all costs within thirty days, the plaintiff was bound to fulfill that condition, by the payment of such costs within that time, or the order granting the new trial could never have any operative force or efficacy. A *378thing depending for its force and efficacy upon the happening of some future event, can never have any force or efficacy unless such future event is brought into existence. And an order granting a new trial, upon a certain condition, is substantially the same as no order, if the condition never happens, or is never fulfilled. After the time has elapsed for the condition to be fulfilled, without the same being fulfilled, it is just the same as though no such order had ever been granted. At least, this is usually the case, and we do not think that the present case presents any exception to the general rule. The plaintiff, in the present case, did not furnish any sufficient reason for his failure to pay said costs within the time prescribed by the court. The only reason given by him, or offered, was, that the plaintiff relied upon his counsel, and his counsel “was under the impression that sixty days were allowed plaintiff within which to pay said costs, instead of thirty.” This reason was not sufficient. We think the ruling of the judge of the court below at chambers, and also the subsequent rulings of the court at its next term, tending to make said former order, granting a new trial, efficacious, or granting a new trial, were erroneous.

The judgment of the court below, as it was originally rendered in favor of the defendant below, and against the plaintiff below for costs, must be enforced. And all rulings and orders of the court below, made subsequently to said conditional order granting a new trial, and tending to destroy the force or efficacy of said judgment, will be reversed.

All the J ustices concurring.