66 P. 241 | Kan. | 1901
Lead Opinion
The opinion of the court was delivered by
This was an action upon a note given by plaintiff in error to the defendant in error and to foreclose a mortgage on real estate securing the
From this judgment plaintiff in error brings the case to this court, and alleges as his two principal grounds of complaint that the court had no jurisdiction to grant a new trial at the time it did, upon the motion filed therein out of time, and because the evidence as above indicated was not sufficient to warrant a judgment for the plaintiff under the issues formed by the pleadings.
Section 4756 of the General Statutes of 1901 provides that an application for a new trial must be made at the term the verdict, report or decision is rendered and within three days thereafter, unless unavoidably prevented. In this case the record shows that, although the motion for a new trial was not filed until
In this case the record is silent upon the question as to whether there was sufficient excuse for not filing the motion within the term. Nothing whatever is said upon the subject, but all presumptions that are warranted by the record must be indulged in to support the correctness of the ruling of the court, and, so far as the record shows, abundant proof may have been introduced to show that the party was unavoidably prevented from filing his motion for a new trial within the term. We cannot presume error. If this ■evidence was not before the court, the record ought to have shown its absence in order to show error. It must be remembered that this case is one where a new trial was granted, and not one where it was refused. In a number of cases this .court has decided that a trial court is justified in refusing a new trial where the motion therefor was not filed within the time prescribed by the section which we have cited, but in this case a new trial was awarded, although the motion was filed out of time. Mere filing of the motion out of time does not necessarily show that the court might not consider it, and from the fact that the court did consider it, the record being silent, we must presume that -the motion fell within the exceptions created by the statute itself, and that the facts
It may be suggested that the cited section absolutely requires the filing of the motion within the term, and that the excuse of being unavoidably prevented applies only to the requirement to file within three days. There is some plausibility in such a contention, but we prefer to hold that the- excuse goes to both requirements, and, if unavoidably prevented from filing his motion for a new trial within the term at which the verdict or decision is rendered, still a party may have his motion heard. Such construction seems to us fair and just. It is' the policy of the law to give litigants abundant opportunity to present their grievances to the court, and there is no reason to think that the legislature would wish to help out one who through unavoidable circumstances had been prevented from filing his motion within three days, and not one who through the same circumstances had been prevented from filing within the term. In this case the court adjourned on the same day on which the verdict and judgment were rendered.
After a full'consideration, we hold that the party may be excused from filing his motion for-a new trial at the term at which the verdict or decision was rendered, by a showing of the same unavoidable casualty as would excuse him from filing such motion within three days after the rendition of such verdict or decision.
It is strenuously urged that the evidence introduced by the plaintiff was not sufficent to warrant a judgment in her favor. The defendant denied under oath the execution and delivery of the note and mortgage. The record shows that these were produced by the plaintiff. The fact that they were in the possession
Some other matters are urged in the brief of the plaintiff in error. We have given careful consideration to them and find no reversible error in the record.
The judgment of the district court will be affirmed.
Rehearing
OPINION ON REHEARING.
The opinion of the court was delivered by
The original opinion in this case was handed down October 5, 1901.' A rehearing was granted, principally on the ground that there appeared to be something of a conflict in the former decisions of this court upon the proper construction of section 308 of the civil code (Gen. Stat. 1901, §4756), relating to the time when the application for a new trial could be filed. It was thought to be a matter of so much importance to the profession as to make it worthy of positive and final settlement.
The question is, May the failure to file a motion for a new trial within the term at which the verdict, report or decision is rendered be excused by showing that the delay was unavoidable? The case of Mercer v. Ringer, 40 Kan. 189, 19 Pac. 670, is cited as showing that it cannot, while the case of Fudge v. St. L. & S.
It is urged, however, that the right to grant a new trial must affirmatively appear, such, right being in a sense jurisdictional, and that this court cannot say that this exceptional power to grant a new trial existed unless the facts on which it depended affirmatively appear in the record. Admitting that certain facts must appear to the trial court in order to give it jurisdiction to grant a new trial, the statute nowhere requires that such facts must be made to appear by a writing or be brought into the record. The judge passing upon such a motion may know, of his own knowledge, that the party applying was unavoidably prevented from filing his motion within the term. In this case the court adjourned for the term the same day the decision was rendered, and, from aught that is shown, it may have been at once and under circumstances known to the court which rendered it impossible to file the motion before such adjournment. From this knowledge the court may have had abundant reason for granting such new trial, and, as said in the original opinion, we are obliged to indulge in all reasonable and lawful presumptions, that we may uphold the action of the court below. The court was
All of the other contentions of plaintiff in error received due consideration when the case was heard before, and we do not feel called upon again to refer to them.
The former judgment of this court and the judgment of the court below will be affirmed.