96 Kan. 719 | Kan. | 1915
The German American State Bank sued H. C. Goodrich upon a promissory note. An answer and reply were filed. The burden of proof was held to rest upon the defendant. At the conclusion of his evidence the court directed a verdict for the plaintiff, upon which judgment was rendered. The defendant filed a motion for a new trial, which was granted. The plaintiff appeals.
The plaintiff argues with much apparent force that the evidence introduced, if given its widest scope and most liberal interpretation, does not tend to establish a defense. The defendant does not undertake to meet this argument upon the merits, but insists that the granting of a new trial was within the discretion of the trial court, and can not be reviewed here.
The motion for a new trial set out four grounds: (1) abuse of discretion of the court, misconduct of the plaintiff, accident and surprise; (2) erroneous trial rulings; (3) that the verdict was contrary to the evidence; and (4) newly discovered evidence. The fourth ground may be disregarded since no affidavits were' filed, as required by the code. (Civ. Code, § 307.) No proceedings are pointed out to which the first and second may apply, and none are apparent from the record brought here. If the evidence had presented an issue of fact, on which the case had been submitted to the jury, the power of the trial court to grant a new trial on the third ground could not be doubted, since without its approval the verdict would not support a judgment. (K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 12, 30 Pac. 108.) But the peremptory instruction to return a verdict had substantially the same effect as sustaining a demurrer to the evidence, and a plausible argument is made that the ruling turned upon a naked question of law and is subject to review. The practice with respect to-the two rulings, however, is not precisely similar. It has been held that while a motion for a new trial is not a prerequisite-to an appeal from an order sustaining a demurrer to evidence-(Wagner v. Railway Co., 73 Kan. 283, 85 Pac. 299), a different rule prevails upon a directed verdict for the defendant (Darling v. Railway Co., 76 Kan. 893, 93 Pac. 612). If we-were sure that the trial court granted the new trial because.
The judgment is affirmed.