37 Kan. 267 | Kan. | 1887
The opinion of the court was delivered by
This is a proceeding in error brought to reverse an order of the district court of Wabaunsee county, setting aside a verdict and granting a new trial. The plaintiffs in error, who were plaintiffs below, brought the action to recover the south half of the southwest quarter of section twenty-four, township eleven, range twelve east, being an eighty-acre tract of land situated in Wabaunsee county. The
We cannot say that the court erred in its ruling. It is seldom that a case is presented which would justify the court in reversing an order granting a new trial. The trial court is invested with a large discretion in # t ° disposing of applications for a new trial, and it is generally held that, to warrant a reversal, it requires a clearer showing of an abuse of discretion in granting a new trial than in refusing one. It was recently said in this court, that such an order will not be reversed unless the court “can see beyond all reasonable doubt that the trial eourt has manifestly and materially erred with reference to some pure, simple and unmixed question of law, and that except for such error the ruling of the trial court would not have been made as it was made, and that it ought not to have been so made.” (City of Sedan v. Church, 30 Kas. 190. See also Brown v. A. T. & S. F. Rld. Co., 29 Kas. 186, and cases there cited.) The particular ground or grounds upon which the court places its decision cannot be learned from the record, as it is recited that the application was sustained for the reasons stated in the motion. Exceptions were taken by the defendant, during the trial, to the rulings of the court on the admission of evidence, and in charging the jury. Among the reasons stated why a new trial should be granted was, the misconduct of the jury, and irregularity in the proceedings of the court and j ury, by which the defendant was prevented from having a fair trial. Affidavits were filed in support of these allegations. In one affidavit it is shown that, after the case was submitted to the jury, and the jury had retired to the jury room in charge of the bailiff, a member of the jury applied and was allowed to go from the jury room to the water closet; and when he returned the jury had left the room, and gone to the court house; and
Under the rules established by the decisions of this court, we cannot say that there was error in the ruling of the district court granting a new trial, and hence its order and judgment will be affirmed.