51 Kan. 6 | Kan. | 1893
The opinion of the court was delivered by
This was an action in the court below by Joseph Brown against the Atchison, Topeka & Santa Eé Railroad Company and H. T. Dobson, to recover damages for malicious prosecution. At the January, 1890, term of the court, the case was tried before the court with a jury, and the jury returned a verdict for $2,030 in favor of Brown, and also returned certain findings of fact. A motion for judgment on the findings was filed by the railroad company; also a motion for a new trial. Afterward, and before any action was taken by the court upon either of these motions, the railroad company filed a motion for leave to withdraw the motion for a new trial. Afterward, in open court, the railroad company waived all errors committed upon the trial against it, except the overruling the motion for judgment on the findings, but the court overruled the motion for judgment, and at the same time, upon Brown confessing the motion for a new trial to have been well taken (but after the railroad company had waived all errors, and asked to withdraw its motion), the court granted a new trial. No motion for a new trial was filed by
The only question presented for our determination is, whether the court erred in granting a new trial in the cause. If the company had not asked leave to withdraw its motion for a new trial, and had not, when this was refused, waived all errors committed upon the trial against it, we would not interfere. The granting of a motion for a new trial is largely in the discretion of the trial court, and, where such a motion is granted, the order will not be reversed, unless it clearly appears that there is no error in the record upon which the motion ought to have beeu granted. (City of Sedan v. Church, 29 Kas. 190; Barney v. Dudley, 40 id. 247; Insurance Co. v. Thorpe, 40 id. 255.)
The trial court overruled the motion for judgment for the railroad company upon the special findings of facts returned by the jury. The court therefore held that the special findings were not inconsistent with the verdict, and, such having been its ruling, judgment should have been entered upon the verdict in favor of Brown, the plaintiff below. There were no grounds to grant the new trial on account of the motion which was filed, but afterward waived, by the railroad company. Under these circumstances, it is nowhere shown that the court, for any good reason, granted the new trial. It is not alleged that the verdict of the jury was insufficient in amount. We perceive no good reason why the railroad company should not have been permitted to withdraw its motion, or, if not withdrawn, to waive all errors alleged therein. Under the circumstances, there was an abuse of discretion upon the part of the trial court in granting a new trial without any apparent reason therefor, either in law or otherwise. If the court had held the special findings inconsistent with the verdict, it might have ordered a new trial, but it ruled otherwise on the special findings.
We have held that a new trial may be denied, although both parties ask it. (Gunn v. Durkee, 41 Kas. 144.) But
The order of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views expressed herein.
