| Kan. | Jul 15, 1874
The opinion of the court was delivered by
This action was commenced originally in a justice’s court. Judgment was there rendered in favor of the defendant in error, plaintiff in the justice’s court, and against Ayres, the defendant in the justice’s court. Ayres removed the case to the district ‘court on petition in error, where the judgment of the justice was affirmed; and now as plaintiff in error Ayres brings the case to this court.
It is claimed that the district court erred in affirming the judgment of the justice; and it is also claimed that the justice erred in rendering the judgment he did upon the evidence introduced at the trial before him. That is,' it is claimed that the evidence introduced at the trial is not sufficient, and does not sustain the judgment rendered by the justice. These are the only rulings of either court complained of. The trial in the justice’s court was before the justice alone, and he found generally for the plaintiff and against the defendant, and rendered his judgment accordingly. The defendant (now plaintiff in error,) excepted to the judgment, but did not ask the court to make special findings of either fact or law, and made no motion for a new trial. The exception to the judgment was the only manner in which the defendant raised any question as to the sufficiency of the evidence; and no question was raised in any form or at any time as to the relevancy or competency of any particular portion of the evidence. Under these circumstances is there anything for us to review? "We think not. This question has already been decided in this court. Major v. Major, 2 Kan., 337" court="Kan." date_filed="1864-02-15" href="https://app.midpage.ai/document/major-v-major-7882024?utm_source=webapp" opinion_id="7882024">2 Kas., 337, 338,
"When a case is tried before a justice of the peace upon the evidence it is tried in the same manner as it would be tried if it were tried before a jury, and the findings of the justice are entitled to the same respect as those of a jury. Therefore, where a case is tried before a justice, if the justice is bound to render just such a judgment as ought to be rendered upon the evidence, whatever his findings of fact might be, then, where a case is tried before a jury, the court would also be bound to render just such a judgment as ought to be rendered upon the evidence, whatever the findings of the jury might be. That is, the court would be bound to wholly ignore the findings of the jury, and to render the proper judgment upon the evidence. . The court could not grant a new trial in such a case, but would be bound to render a judgment, and to render just such a judgment as the evidence would warrant, whatever the findings of the jury might be. We cannot think that this is the law.
It is our opinion that no court can wholly ignore the findings of fact, whether made by court, referee or jury. And no court can re-examine the evidence for the purpose of determining whether such findings are sustained by sufficient evidence, except for the purpose of granting a new trial. And therefore, if no new trial is asked for, no such re-examination can be had. If the re-examination of the evidence should be for the purpose of determining what the judgment should be, then the re-examination of the evidence would really be a re-trial of the case upon its merits. And where the case had been tried by a jury it would be an infringement by the court upon the province of the jury.
We do not wish to be understood as deciding in this case that a new trial may be granted in a justice’s court on the ground that the findings of the court or jury are not sustained by sufficient evidence; and neither do we wish to be
The judgment of the court below must be affirmed.