35 Kan. 634 | Kan. | 1886
A preliminary question is presented in the motion made to dismiss the petition in error, upon the ground that it is barred by the statute of limitations. (Laws of 1881, ch. 126, § 2.) The case was tried April 10, 1884, and judgment appears to have been entered upon the same day. A motion in arrest of judgment and for a new trial was filed April 12, 1884, heard April 16, l'884, and upon that day overruled. Among the grounds for a new trial it was alleged in the motion that there were errors of law occurring at the trial, which were excepted to by the plaintiff. Said § 2 provides :
' “No proceeding for reversing, vacating or modifying judgments or final orders shall be commenced, unless within one year after the rendition of the judgment, or making of the final order complained of.”
The petition in error in this case was filed April 14, 1885, less than a year from the time of the overruling of the motion for a new trial. This court has the authority to reverse, vacate or modify an order that grants or refuses a new trial. (Code, § 542.) Upon the hearing of a motion for a new trial, all of the rulings of the court made during the trial and therein referred to and excepted to at the time they were mad§, should be again considered by the court. (Backus v. Clark, 1 Kas. 303; DaLee v. Blackburn, 11 id. 190; City of Ottawa v. Washabaugh, 11 id. 124.) As the order complained of is the overruling of the motion for a new trial, and as the petition in error has been filed within one year from the making of the order complained of, the motion to dismiss must be overruled. (28 Kas. 769; 29 id. 476, 481.)
The plaintiff, for his cause of action against the defendant, alleged in his petition that on September 1, 1881, he entered into a contract with the defendant whereby the latter agreed to furnish him five hundred bushels of good merchantable corn, at forty cents per bushel, to delivered at the Douglas farm, west of Thayer, or in the vicinity of Altoona, Kansas,
The defendant in his answer stated, among other things:
“That in pursuance of the written contract between himself and plaintiff, he purchased five hundred bushels of good merchantable corn, and caused the same to be cribbed at the place designated in the contract, during the month of November, 1882, and held the same until April 10, 1883; that plaintiff refused to receive the corn, and wholly failed to comply with the conditions of the contract.”
To this answer the plaintiff filed a reply, denying generally the allegations contained in the answer, except those specifically admitted. He denied that any corn of the quality contracted for was delivered or tendered to him. He further alleged that the corn tendered or offered to him by the defendant, was light and damaged corn; that subsequently the defendant took the corn and appropriated it to his own use.
The important question upon the trial was, whether the corn tendered by the defendant was good merchantable corn. The plaintiff asked the court to instruct the jury that the burden was upon the defendant to prove that the corn tendered was good merchantable corn. The court refused this instruction, and charged the jury that “the burden of proof was upon the plaintiff to satisfy them by a preponderance of the evidence that the corn tendered was not good merchantable corn.” It appears from the evidence that there was great conflict in the testimony, as to the quality of the corn cribbed and tendered, and this was the substantial issue in the case.
"We think the trial court mistook the scope of the allega
The judgment of the district court will be reversed, and the case remanded for a new trial.