55 Kan. 186 | Kan. | 1895
The facts in this case as it was first presented to this court appear in 52 Kas. 759. This court, on the case then submitted, held that the district court erred in refusing to receive and enter the verdict of the jury, and directed that judgment be entered in favor of the plaintiff for the amount of the verdict. A mandate was duly issued and filed in the district court of Bourbon county, and on the 16th day of May, 1894, it was presented to the court with a motion for judgment thereon. Thereupon the defendant filed a motion for a new trial on various grounds. This motion was overruled, and the defendant excepted. A journal entry incorporated in the case-made recites :
“Now on this May 16, 1894, came on to be heard the above-entitled cause on plaintiff’s motion for judgment on the supreme court’s mandate filed here May 9, 1894, the plaintiff appearing by her attorney, E. P. Ware, and defendant by its attorney, I. P. Dana. Defendant asked the court to allow it a reasonable time, before rendering any judgment in plaintiff’s favor, to file here a transcript of the testimony introduced at the trial of the cause in January, 1890, and a transcript of the charge given by the judge to the jury at that trial, and also asked the court for leave to present to it for review errors of law which occurred at said trial; each of which requests and applications the court refused and overruled, and to each such ruling of the court defendant at the time duly excepted and excepts. Thereupon, arguments having been heard on plaintiff’s said motion, the court doth order, adjudge and decree : First, That the judgment heretofore rendered herein pn January 18, 1890, which is recorded in journal “P,” at page 433 of the records of this court, be set aside and held for naught, said judgment being the one rendered in favor of the de*191 fendant and against the plaintiff for costs; second, that the plaintiff have and recover of and from the defendant the sum of $5,000, the amount named, in the verdict of the jury, in favor of plaintiff, filed January 18, 1890, together with 6 per cent, interest thereon from the date of said verdict, being a total sum of sixty-two hundred and ninety-eight ($6,298) dollars.”
Twenty-five days were given the defendant to make and serve a case for this court. The defendant then filed a motion for rehearing, which was overruled. (52 Kas. 774.)
Counsel for plaintiff in error argue with great earnestness and force that the general verdict in favor of. the plaintiff for $5,000 and the special findings of fact were never recognized by the trial court as verdicts until after the mandate of this court was presented directing that they be received and filed and judgment entered thereon ; that at the time of the trial the court refused to receive or recognize these verdicts as verdicts, but directed a general verdict in favor of the defendant, on which it entered judgment; that however much the court might have erred in the conduct of the trial, however unsupported by law or the facts the verdict on -which this court directed judgment to be entered might be, the defendant, having a verdict in its favor and a judgment thereon, not only was not called on to file a motion for a new trial, but that there was absolutely no foundation for any such motion. It is further insisted that vitality was first given to the verdict by the order and judgment of this court, and that not until its mandate was presented to the district court did the verdict of the jury have any force as a verdict; that the defendant was then for the first time called upon to challenge its correctness, or the proceedings of the court at the trial. These views
The district court is directed to modify the judgment by striking out the allowance of interest so that it will stand as a judgment rendered on the 16th day of May, 1894, for $5,000, from which date it will bear interest at 6 per cent. The costs in this court will be equally divided.