110 Kan. 590 | Kan. | 1922
The opinion of the court was delivered by
C. M. Seeley sued the Avery Company and the West Motor Car Company for damages, alleging that the latter as the agent of the former had sold him a tractor for $2,400 under certain representations that if true would have made it worth that amount, but that in fact it was worth no more than its junk value of $75. He also alleged additional damages of $1,000 by being deprived of the use of a tractor for fall plowing. A jury trial resulted on May- 4, 1920, in a verdict and judgment in favor of the plaintiff against the Avery Company for $1,900, the elements of which were not indicated, and a judgment in favor of the West Company against the plaintiff for its costs. The Avery Company in due time filed a motion for a new trial which was argued and submitted, and taken under consideration by the court without any announcement as to the time the decision would be made, and on July 31, 1920, was overruled. On June 7, 1921,‘the Avery Company brought an independent action against Seeley (joining the West Company as a defendant) , asking the same court to set aside the judgment against it, and the order overruling its motion for a new trial. A demurrer to this petition filed by Seeley was 'sustained, and this appeal is taken from that order.
In a case in which a judgment for the collection of a life insurance policy had been affirmed by this court it was discovered while a petition for a rehearing was pending that the insured was still alive. To prevent so obvious a miscarriage of justice as the collection of insurance upon a live man on the theory that he was dead the judgment was reversed. (Caldwell v. Modern Woodmen, 89 Kan. 11, 130 Pac. 642.) The plaintiff doubtless conceives the wrong it has suffered as bringing this case within the same class. We cannot, however, accede to this view. The fact that the tractor was sold for $1,500 may be a strong circumstance bearing upon the merits of the controversy, but is not comparable in probative effect with the production in the flesh of a man supposed to be dead. Merely for illustration it is possible that the buyer paid more than the tractor was worth. Moreover as already stated in the present case the plaintiff failed to avail itself of a remedy that was open if the sale referred to took place prior to May 4,. 1921, and there is nothing in the petition to indicate the contrary.
The plaintiff quotes these provisions of the code, and presumably relies upon them as the basis for the relief sought:
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made:
“Third, for mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order.
“Fourth, for fraud, practiced by the successful party, in obtaining the judgment or order.
“Seventh, for unavoidable casualty or misfortune preventing the party from prosecuting or defending.” (Gen. Stat. 1915, § 7500.)’
There was no mistake,--neglect or omission- of the clerk, nor was there any irregularity in obtaining either the judgment or the order overruling the motion for a new trial. The plaintiff’s complaint is merely that he was not notified of the ruling. Nor was any fraud practiced by Seeley in obtaining the judgment or order. If Seeley’s pleading that a tractor which later was sold for $1,500 was practically worthless, with any evidence he may have given in support of the statement, is regarded as-constituting fraud it is not the kind
“A careful reading of this clause makes it' very clear that this language has exclusive reference to matters occurring before the entry of the judgment sought to be vacated. Indeed, its most obvious, though perhaps not its only, application is to cases where by some casualty or misfortune a defendant has been made to suffer default, or a plaintiff has been held in default for want of prosecution of his action. It is not every casualty or misfortune which justifies such relief, but only such as ‘prevents the party from prosecuting or defending.’ No such claim is presented in the case before us. All the parties were in court upon the original hearing, the plaintiff prosecuting, and the defendants contesting and defending, each step in the proceedings. The issues were submitted only after a full and complete trial, in which all parties had full opportunity to introduce every item of testimony which they believe to have any bearing upon the controversy. Surely it cannot be said that the death of Mr. Cody, occurring more than a year after the cause was tried and submitted, and three months after the entry of the decree, was a casualty preventing these appellees from making their defense.” (Realty Co. v. Erickson, 143 Iowa, 677, 681.)
And this language was .quoted from Loomis v. McKenzie, 48 Iowa, 416:
“It cannot be said a p'arty is prevented from prosecuting or defending a case by a matter occurring after judgment. But it may be said he is prevented from prosecuting or defending his appeal in the case. But no such meaning can be put upon the language. It unmistakably refers to casualties which prevented the prosecution or defense at the trial upon which the judgment was entered.” (p. 419.)
Under various constitutional and statutory provisions, where an effective appeal has been prevented without fault on the part of the losing party, new trials have been granted by the appellate court (Notes, 25 L. R. A., n. s., 860; 12 Ann. Cas. 1056; 21 Ann. Cas. 262), and it has been said that this may be done by the trial court (Elliott v. State, 5 Okl. Cr. 63; Farmer v. State, 5 Old. Cr. 151). If such a
The petition sets out that on July 31, 1920, a motion of the West
The judgment is affirmed.