Thomas v. Kansas City Elevated Railway Co., No. 15,093

No. 15,093 | Kan. | Jun 8, 1907

The opinion of the court was delivered by

Graves, J.:

The only question presented here is whether the court, when ruling upon a motion for a new trial, can, instead of granting or refusing the request presented by the motion, set aside the judgment' already entered and render one against the other party. Whatever may be the rule in exceptional cases, we think the action of the court in this case was erroneous.

Where parties are present in court and have a full opportunity to be heard and a judgment is entered at the conclusion of the trial, their inherent rights, so far as a trial is concerned, are exhausted. Neither party can demand as of right a further hearing, except as such right is saved to him by the statute. (Nesbit v. Hines, 17 Kan. 316" court="Kan." date_filed="1876-07-15" href="https://app.midpage.ai/document/nesbit-v-hines-7884259?utm_source=webapp" opinion_id="7884259">17 Kan. 316; Coal Co. v. Barber, 47 Kan. 29" court="Kan." date_filed="1891-07-15" href="https://app.midpage.ai/document/leavenworth-coal-co-v-barber-7888569?utm_source=webapp" opinion_id="7888569">47 Kan. 29, 27 Pac. 114.) The law requires the party who desires a new trial to ask for it within the time and for the reasons prescribed. A failure to comply with the statutory requirements waives the right. When the motion is properly filed and presented, the only question before the court is, Shall a new trial be granted? If one or more of the reasons stated in the motion be found to exist, the motion should be allowed and a new trial granted; otherwise it should be denied, and the judgment thereby becomes final in that court.

In this case the court found that it erred in refusing to sustain the defendant’s demurrer to the plaintiff’s evidence, but this merely amounts to an error occurring at the trial and furnishes good cause for granting a new trial. The court decided that the defendant was entitled to a new trial, but, instead of granting it, entered judgment against the plaintiff for costs. This was erroneous. The plaintiff is in a worse situation now than if the demurrer had been sustained at the time it was first presented. Then he might have saved himself from defeat by obtaining permission to reopen the case and supply the required testimony; now he cannot by any means regain this opportunity. If by some oversight or mistake liable to overtake any practitioner the plaintiff omitted an item of important testimony, which could be easily supplied, his loss is serious and irreparable. In what particular the evidence in this case failed to meet the legal requirement the record does not disclose. The court does not state wherein it held the plaintiff’s evidence deficient, and we are unable- to say what the situation was when the demurrer was overruled. We think, however, that as a general rule a court upon the presentation of a motion for a new trial can do no more than grant or deny the motion. When, however, it appears that the deficiency in the evidence is of such a nature that it cannot be supplied by the plaintiff, and that upon a new trial it will be impossible for him to make a prima facie case, then he would lose nothing by the order, and the court would be justified in making it. The record, however, does not show this to be such a case. In this case we think the court should have granted a new trial only, and it was error summarily to enter judgment against the plaintiff.

The judgment is therefore reversed, with direction to grant a new trial and proceed with the case in accordance with the views herein expressed.