4 Kan. App. 484 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
The court did not err in overruling the motion of plaintiffs below for judgment. This was an action for the recovery of money and the foreclosure of a mortgage in which the validity of both the note and mortgage was attacked. Either party was entitled to a jury trial as a matter of right, and the court must either render judgment upon the verdict of the jury or he must set it aside and grant a new trial.
In the remarks of the trial judge in passing upon the motion for a new trial the judge stated that his judgment did not coincide with that of the jury. The judge also said:
“I think this is a case in which the jury, through sympathy for the woman and children, returned a verdict that is not supported by the evidence; yet, notwithstanding the fact that my judgment does not approve the verdict of the jury, I think it my duty to overrule the motion for a new trial. . . . My judgment did not approve the verdict at the last term and I granted a new trial. Subsequent consideration of the evidence introduced at that trial and hearing*487 the case tried at this term did not change my views, and it is not probable that upon the same evidence I will change my views in the future.”
If the trial judge does not approve of the verdict of the jury he must set it aside and grant a new trial. This requirement is so well established by the decisions of our supreme court that it leaves no discretion with the trial judge, but is a mandatory duty imposed upon him. (Richolson v. Freeman, 56 Kan. 468.)
In the case of K. C. W. & N. W. Rld. Gov. Ryan, 49 Kan. 12, Horton, C. J., in delivering the opinion, says:
“It has been the unvarying decision of this court to permit no verdict to stand unless both the jury and the court trying the cause could, within the rules prescribed, approve the same. When the judgment of the trial judge tells him the verdict is wrong, whether from mistake, or prejudice, or other cause, no duty is more imperative than that of setting it aside and remanding the questions at issue to another jury. While the case is before the jury for their consideration, the jury are the exclusive judges of all questions of fact; but when the matter comes before the court upon a motion for a new trial it then becomes the duty of the trial judge to determine whether the verdict is erroneous. He must be controlled by his own judgment, and not by that of the jury. , . . He must approve or disapprove the verdict. If he approves, he may overrule the motion for a new trial; if he disapproves, he should set it aside and permit another jury to pass upon the facts.”
The judgment of the district court is reversed, and the cause remanded for a new trial.
