6 Kan. App. 714 | Kan. Ct. App. | 1897
This action was commenced before a justice of the peace in Arkansas City, by Sallie J. Hall, as plaintiff, against Charles J. Scruton, as defendant, to recover the value of four Jersey cows which she claims Scruton took and converted to his own use.
The case was tried in the District Court with a jury and judgment was again rendered against the defendant. He brings the case to this court, asking us to review the proceedings had in the District Court.
The defendant in error has filed two motions to dismiss the case from this court. The first one is upon the ground that the record does not show that the motion for a new trial was filed at the term of court at which the verdict was rendered. The record shows that the verdict was rendered on January 26,1892. A motion for judgment upon the verdict was filed on January 27. The motion for a new trial was filed on January 29; The hearing upon the motion for judgment on the verdict was continued, January 30.
In determining the case, it will be necessary to consider but one of the specifications of error, and that is, that “ the court erred in refusing to instruct the jury in writing as requested by the plaintiff in error.”
The record contains the following statement:
i. instructions in m-iting. “ By attorney for defendant. The defendant moves and requests the court to instruct the jury in writing and to allow the defendant to have written instructions before he is compelled to argue the case to the jury, which motion and request is by the court overruled, to which order of the court the defendant excepts’.”
The record does not disclose at what point in the trial this request was made, nor why the court overruled the request. The court instructed the jury orally. This is reversible error. See Wheat v. Brown, 3 Kan. App. 431, and cases therein cited.
For this error the judgment of the District Court is reversed.