23 Kan. 317 | Kan. | 1880
The opinion of the court was delivered by*
This was an action appealed from a justice of the peace, for labor done in and about certain zinc smelting works. The question wa^ as to the liability of the defendant, no question being made as to the fact of the work or its value. The verdict was against the defendant. Upon a-motion for a new trial, the court ruled that it should be granted, upon the payment within thirty days of all costs in the district court, and in' default of such payment, that it should, be overruled, and .judgment entered on the verdict. The defendant alleges error.
The grounds of the motion for a new trial were, that the verdict was contrary to the law and the evidence, that the court erred in admitting testimony, and in other rulings. No' claim was made on account of accident, surprise, or newly-discovered evidence. The claim of the defendant therefore was, that there was error on the part of the court or jury to its prejudice. The court, by sustaining the' motion, even conditionally, in effect found that such claim was correct; and yet it refused any relief to defendant, except upon payment of costs. Now when the claim for a new trial is based upon accident, or newly-discovered testimony, grounds which concede the correctness of the trial already had, there is often fairness and justice in requiring a payment of the. costs of such trial as a condition of a new one. For if the victorious party is without fault and the proceedings without error, it is a hardship on him to be compelled to relinquish what he has obtained and venture upon a new trial, simply on account of the intervention of some new fact in behalf of his opponent. It is often just to make the party who has thus obtained an opportunity to relitigate his case, pay the fruitlessly expended costs of the first trial. But a different rule prevails where the new trial is claimed and awarded, not on
The judgment in the district court will be reversed, and the case remanded with instructions to grant a new trial.