22 Kan. 527 | Kan. | 1879
The opinion of the court was delivered by
Counsel claiming a reversal of the judgment of the district court, contends that the execution in the case of Goodin v. Church was wrongfully issued, as the motion for a new trial was pending and undisposed of at the date of its issue, and therefore that the action of Goodin v. Church and his sureties, upon the appeal bonds, was prematurely brought. At common law the motion for a new trial suspended the judgment and all its effects until the motion was disposed of. In this country, this rule of the common law has been very generally supplanted by statutory provisions, and in order to obtain a stay of execution, the proceedings prescribed by statute must be strictly pursued. When a trial by jury has been had in this state in the district court, judgment must be entered by the clerk in conformity to the verdict, unless it is special, or the court order the case to be reserved for future argument or consideration. (§409 of the civil code.) After the judgment is fully recorded, it is valid and has force and effect, notwithstanding the pendency of the motion for a new trial. Where a stay is desired pending the hearing of this motion, an order of the court to that effect should be obtained. The power of courts to temporarily stay the issuing of execution, is exercised in an almost infinite variety of circumstances, in order that the ends of justice may be accomplished, and to prevent hardships. The better practice would be, where a motion for a new trial goes over to the next term, for the court to enter
■The judgment of the district court will be affirmed.-
