3 Kan. App. 750 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
At the threshold of this case counsel for the defendant in error interpose an objection, on the ground that the errors complained of cannot be reviewed by this court, for the reason that no motion for a new trial was made in the trial court within the time required bylaw. The proposition, which is presented and argued with much skill and ability, is that it is not sufficient that the motion for a new trial be filed within three days after the verdict or decision complained of is rendered, but that the motion must have been actually presented to the court within that time. It is claimed that a written motion for a new trial is not required by the statute; that it may be a mere verbal application to the court, based upon written grounds on file at the time. So far as concerns this question, sections 308 and 309 of the code provide that the application for a new trial must be made at the term the verdict or decision was rendered and within three days thereafter, upon written grounds filed at the time of making the motion. The contention is that the application must be made to the ■court; that the mere filing of a written application with the clerk, without its being actually called to the attention of the court, and thus presented to it within the three days, is not a compliance with the statute. The argument of counsel is plausible aiid not without force, and presents a question which at an earlier
So far as we are informed, this question has never been raised or passed upon in this state. Occasion for it has been frequent, almost every' volume of the reports containing cases wherein the supreme court has considered the manner and time of making a motion for a new trial. These sections of the code have been considered and applied under almost every conceivable state of facts. It has been the uniform practice in this state, from the beginning, to recognize the filing of a written motion for a new trial, within three days after a verdict or decision, as an application made ” within the meaning of section 308, and as equivalent to the formal making and presentation of the motion to the court which counsel for defendant in error claim to be essential. (Mitchell v. Milhoan, 11 Kan. 617; Nesbit v. Hines, 7 id. 316; Fowler v. Young, 19 id. 150 ; Clayton v. School District, 20 id. 256 ; Gruble v. Ryus, 23 id. 195 ; Pratt v. Kelley, 24 id. 111; Hover v. Tenney, 27 id. 133 ; Dyal v. City of Topeka, 35 id. 62; Mercer v. Ringer, 40 id. 189; Deford v. Orvis, 52 id. 432; Brewing Association v. Wolff, 53 id. 323.)
This construction of the statute has, also, been universally acquiesced in and acted upon by the courts and by the bar of the state, and has become a rule of practice as thoroughly established as if directed by the very letter of the law. The change of construction contended for would not only revolutionize the practice, but would inevitably result in the doing of
Upon the merits of the case, we find numerous errors complained of, arising out of the rulings of the court and running through a voluminous record. For the most part, they are rulings upon the admission of evidence, and are not of sufficient importance to merit any extended place in this opinion. In the court below, Gould, who had leased a tract of land from Free-love and was in possession of the same, brought an action in the nature of trespass quare clausum fregit, seeking to recover damages alleged to have been sustained from certain wrongful and unlawful entries made by Freelove upon the premises. The petition contains two counts, the first declaring upon a trespass upon the premises and the destruction of grass and corn growing thereon, at divers times between the 1st day of March, 1889, and the 5th day of February, 1891; and the second alleging that the defendant, on February 5,1891, unlawfully entered upon the premises, broke into plaintiff’s dwelling-house, took possession of his furniture, household goods, and family clothing, and ejected him therefrom. Gould’s tenancy was for a term of three years from March 1, 1889. The jury returned a verdict in favor of the plaintiff for $325 — $300 as damages for the injury to the furniture and household goods, $10 for damage done in cutting corn, and $15 as the value of some hogs and chickens which were on the premises. It is contended on the part of the defendant that this verdict is not sustained by the evidence.
The jury found that Freelove’s entry upon the prem
Under this rule, the plaintiff was not entitled in this case to recover any damages on account of his hogs and chickens. They were not mentioned in the pleadings; and if we turn to the evidence there is nothing to show what became of them, or that the defendant ever exercised any control over them. The jury specially found that it was not shown that the defendant converted to his own use any of the property of the plaintiff. If the defendant did not appropriate any of plaintiff’s property nor prevent him from having it, and it was situated so that it could at any time have been taken possession of, he certainly was not entitled to recover its full value as damages merely because of a trespass upon the premises where such property was situated. The evidence shows that when the defendant took possession of the house the plaintiff’s household goods, clothing, etc., were therein ; that the defendant offered to hand them out to plaintiff, but refused to permit him to enter the house