85 P. 299 | Kan. | 1906
The opinion of the court was delivered by
The defendant in error moves to dismiss this proceeding for want of a lawful case-made. When the cause came on for trial in the district court a jury were impaneled and sworn, and the plaintiff made a statement of his case and of the evidence by which he expected to sustain it. The defendant moved for judgment in its favor upon the pleadings and the plaintiff’s •statement. The plaintiff then asked and obtained leave to amend his reply. The amendment having been made, the defendant renewed its motion for j udgment, and objected to the introduction of any testimony in the case. The motion and objection were both sustained, and judgment was rendered against the plaintiff for costs. On the same day a motion for a new trial was filed, which was denied some thirty days later.
“A new trial is a reexamination in the same court, of an issue of fact, after a verdict by a jury, report of a referee, or a decision by the court. The former verdict, report or decision shall be vacated, and a new trial granted on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party.”
From this language it is plain that a motion for a new trial has no function to perform unless an issue of fact has been fully determined and the determination has been embodied in one of three specified forms. Not only must there have been a trial, a judicial examination of the issues of fact, but those issues must have been definitely settled by the verdict of a jury or its equivalent, final and conclusive upon .the facts unless vacated. Until that stage of the proceedings in an action has been reached the condition precedent to the filing of a motion for a new trial does not arise; the single circumstance capable of creating a field for its operation has not occurred; the only subject-matter vulnerable to its attack does not exist.
There is no such thing as a new trial of issues of law. Questions relating to the determination of those issues may be investigated by this court without previous reexamination by the trial court. Whenever there has been a trial and a verdict or report or decision on the facts, only those errors of law occurring at the trial which inhere in and vitiate the conclusion of fact need be called to the attention of the trial court by a motion for a new trial. If the facts have been agreed to, or
When judgment is rendered on the pleadings there can be no trial of the issues of fact, no verdict, and no motion for a new trial is required. (Land Co. v. Muret, 57 Kan. 192, 45 Pac. 589.) When an objection to the introduction of evidence under the pleadings is sustained there can be no investigation, much less determination, of the issues of fact, and a motion for a new trial is not necessary. (Water-supply Co. v. Dodge City, 55 Kan. 60, 39 Pac. 219.) If in stating his case to the jury a party assert or admit some fact which leads his opponent to move at once for judgment or to object to the introduction of evidence, the question for determination is one of law precisely the same as if the fact had been pleaded. The purpose of the motion is to obviate calling the witnesses and proceeding with the examination of the issues of fact, if any remain, and if the motion be allowed there can be no verdict or decision on the issues of fact. Therefore no motion for a new trial is needed in such cases, and
It must be conceded that the cases of Gruble v. Ryus, 23 Kan. 195, Norris v. Evans, 39 Kan. 668, 18 Pac. 818, Lott v. K. C. Ft. S. & G. Rld. Co., 42 Kan. 293, 21 Pac. 1070, and others, holding that if a demurrer to evidence be sustained a motion for a new trial is necessary to sustain a proceeding in error here, are opposed in principle to this decision. The opinion in Gruble v. Ryus, supra, takes into consideration nothing except the fact that error of law occurring at the trial is ground for a new trial, it entirely overlooks the provision of the statute deferring a motion for a new trial in all cases until after a verdict, or its equivalent, has been returned. A demurrer to evidence raises nothing but a question of law, and it is impossible for its decision to be a decision of the issues of fact. If sustained, it not only leaves the issues of fact undetermined, but it deprives the party against whose evidence it is directed of any opportunity of having them determined by a verdict, report or decision; and it is only “after” a verdict, report or decision which, unless vacated, settles all controversy with reference to the issues of fact that a motion for the reexamination and settlement anew of those issues is in order. The suggestion in Gruble v. Ryus that an improper exclusion of evidence may have induced the ruling sustaining the demurrer to the evidence does not change the procedure which the statute plainly establishes. Both errors may be presented to this court without a preliminary motion for a new trial in the district court, because the abortive trial did not progress to a verdict, report or decision on the issues of fact.
The cases which follow Gruble v. Ryus as an authority do not discuss the question involved. Although