Educational Ass'n of Christian Churches v. Hitchcock, 4 Kan. 36

Educational Ass'n of Christian Churches v. Hitchcock

4 Kan. 36 | Kan. | 1866

By the Court,

Safford, J.

Reference being had to the bill of exceptions, and the facts as they appear in the record, we will proceed briefly to examine the several alleged errors presented by the defendant below, and plaintiff here. It is contended by the plaintiff in error that the verdict of the jury in this case was not responsive to, nor a sufficient finding of, the issues therein as-made up by the pleadings. The verdict is in these words : “We, the jurors in the above entitled cause, find a verdict in favor of the plaintiff, of four hundred and eighty dollars and twenty-seven cents, with interest after the 1st day of June, 1864.” This is a general verdict, and we think that it covers all of the issues in the case. Besides, if it was really objectionable on the grounds stated, it might have been modified before the jury separated, upon request of the party desiring that it should be differently or more clearly expressed. This was not done, nor was any request that it might be done, proffered to the court. It does not seem to us to be a good ground for reversing the judgment, that the verdict was entered and remained in the form in -which it appears in the record. It is claimed that the court erred in overruling the motion for a new trial. Such motion was based on the refusal of the court to continue the cause upon the ground of absent witnesses, and also on the ground of absence of a particular attorney. Without entering into any lengthy discussion of this matter, deeming it unnecessary, we are clearly of the *40opinion that the eonrt held correctly upon the motion. The affidavit, which was the foundation of the application, did not, in our view, make out a case for a continuance. It did not show due diligence on the part of the defendants in endeavoring to procure either the personal attendance of the witnesses or their depositions, the latter of which there is no reason to suppose might not have been obtained, if the proper steps had been taken in time. The affidavit showfe that the defendants did attempt to procure the deposition of one witness, but we think their show of diligence was too slight, and that the diligence itself came too late to avail them anything on such an application. It is very doubtful if, in a case like the one at bar, and under the circumstances surrounding it, the absence of a particular attorney ought to be held as á good ground for a continuance, though cases might, and no doubt frequently do arise, in which a court, in the exercise of a sound discretion, would feel bound to defer a trial for such reason, but we think that this whole matter is very greatly within the limits of, and should be held subject to, such sound discretion of the court to whom the application is addressed; and in such case a reviewing court would decline to interfere, unless it could be shown that the inferior court had abused its power in the premises. In this instance it does not seem to .us that the court was liable to a charge of this kind.

It is claimed that the court erred in refusing certain instructions, and in giving certain' others to the jury. From the condition of the record, we are unable to pass upon this question at all understandingly. '•

None of the evidence is set out, nor is it affirmatively shown that any evidence at all was offered to support the issues, though such is presumed to be the fact, *41from there having been a trial and verdict, as well as from the presumption of law, that a verdict having been found there was sufficient evidence to support until the contrary appeared. We are therefore unable to see whether the instructions are at all applicable to the case proved, or not. The court said by its refusal to charge as requested, that the instructions were not applicable, and we are bound to presume that the court was right, in the absence of a showing to the contrary.

The instructions might have embodied a sound principle of law, yet, if not applicable to the case before-the jury, it was not error to refuse to give them.

It is further claimed that the court rendered a judgment for a larger amount than was authorized by the verdict. We think this was the case. The jury found for the plaintiff in the sum of four hundred and eighty dollars and twenty-seven cents, and interest from the 4th day of June, 1864. It was the duty of the court'to instruct the jury as to the rate of interest, and then they might calculate it. Failing to do so, and the jury' failing to compute the interest, the court could not take such interest into consideration in rendering this judgment. The jury must assess the damages (Code, §289), and the court then renders the judgment. Besides, if the plaintiff desired, he might move the court to instruct the jury to so correct the verdict as to include the interest. But we do not think this error is a sufficient ground upon which to reverse the judgment, and especially since the difficulty could be remedied by a simple modification. The defendant in error consenting thereto, we will order the judgment so modified as that the amount shall be the same as named in the verdict of the jury, to wit: four hundred and eighty dollars and twenty-seven cents, and that *42being so modified, the judgment of the court below shall stand as the judgment in this case.

And it is further ordered that the costs of this court shall be equally divided between the said parties.

All the justices concurring.