194 Ky. 351 | Ky. Ct. App. | 1922
Opinion of the Court by
Affirming.
By this common law action, filed by appellant and plaintiff below, J. T. Whitmer, against appellee and defendant below, Robert Cardwell, in the McLean circuit court, the recovery of a judgment for $7,850.00 against defendant was sought as compensation for injuries inflicted on. plaintiff through the alleged negligent operation by defendant of an automobile in. the streets of Sacramento, Kentucky, whereby plaintiff’s leg was broken and he sustained other injuries. The answer denied the negligence and in a" separate paragraph relied on contributory negligence of plaintiff, which was denied by a reply, and upon trial the 'Court at the conclusion of plaintiff’s testimony sustained' defendant’s motion for a peremptory instruction and the jury returned a verdict in his favor, followed by a judgment dismissing the petition which the
It is earnestly urged by counsel for plaintiff • that-the court erred in directing the verdict, since the evidence as claimed was sufficient, not only to authorize a submission of the issues to the jury, but sufficient to sustain a verdict in favor of plaintiff, and many cases from this court stating the governing rule of practice relating to such motions are cited and relied on. But the condition of the record renders it unnecessary for us to refer to or discuss them or to detemine the point raised. The verdict was returned and the judgment was rendered on March 17,1920, and we judicially know it was on Wednesday. The motion for a new trial was not filed until the following Saturday, March 20th, and no reason of any character appears 'why it was not filed sooner. 'Section 342 of the Civil Code of Practice requires that the motion shall be filed “within three days after the verdict or decision is rendered,” except when newly discovered evidence is the ground therefor, in which case it may be filed after that time. We have consistently held in a long line of cases that the time limit, in the section of the Code referred to, was mandatory, but also held that the section meant three juridical days and that a non-juridical day intervening between the date of the judgment and the motion must be excluded. Some of the later oases so holding are: Commonwealth v. Standard Oil Co., 129 Ky. 546; Witt v. L. & E. Ry. Co., 158 Ky. 401, and Roberts Cotton Oil Co. v. Dodds, etc., 163 Ky. 695. Many other cases are cited in those opinions. Those cases further hold that when the motion comes too late it will be given no effect and leaves the situation as- if none had been filed, in which case the only matter for determination on appeal is whether the pleadings support the verdict and judgment.
In Harlan v. Barxdale, 18 Ky. L. R. 171, there were the same number of days intervening between the rendering of the judgment and the motion for a new trial as we find in this record. The judgment in that case was rendered on January 24 and the motion' was not made till the third day thereafter, January 27, and it was held to be too late. The same facts appeared in the case of Newport News, etc., Co. v. Thomas, 96 Ky. 613, where the judgment was rendered on Wednesday and the motion was riot made until the following Saturday, which is the exact situation presented by the instant record, and it was held
The question, then, is whether in the absence of amotion for a new trial we are authorized to review the ruling of the court in granting a peremptory instruction when the testimony heard was made a part of the record by a bill of exceptions. The office of a motion for a new trial is to call the attention of the trial court to the errors relied on as occurring during the progress of the trial and which do not appear on the record, so as to enable the court to correct the errors without the necessity of an appeal. There is involved in such reason, not only the principle of fairness to the trial court, but the motion might save the expense of an appeal and to some extent relieve the work of tlie appellate court. Hence, it is universally held that in the absence of a motion for a new trial the only question that may be considered on appeal is whether the pleadings sustain the judgment, and this court has held that the motion was necessary, not only when the judgment is based upon a directed verdict, but it is likewise necessary in common law actions where the jury was -waived and the law and facts were submitted to the court. Helm v. Coffey, 80 Ky. 176; Henderson v. Dupree, 82 Ky. 678; Imperial Fire Insurance Co. v. Kiernan, 83 Ky. 468; Sovereign Camp Woodmen of the World v. Hornung, 190 Ky. 381. In the cases of C., N. O. & T. P. Ry. Co. v. Hansford, 125 Ky. 37, and Broadway and Newport Bridge Co. v. Commonwealth, 173 Ky. 165, it was held that the motion was necessary when the case was tried by the court upon an agreed stipulation of facts, but in the Helm, Henderson, Hansford and the Bridge Company cases, each of ’which was tried by -the court without the intervention of a jury, it was stated in the opinions that this court could look to the evidence contained in the record to see wb.etb.er there was my testimony to support the judgment, notwithstanding there was no motion for a new trial; and the rule embodied in that statement was inadvertently referred to, as though it applied to trials by jury as well as by the court, in the case of Roberts Cotton Oil Co. v. Dodds & Johnson, 163
Whatever, therefore, may be the existing rule of appellate practice in such cases where a jury is waived and the case submitted to the court we are confident that where there has been a jury trial no complaint of the giving of a peremptory instruction can be considered on appeal, in the absence of a motion for a new trial, notwithstanding the testimony is made a part of the record by a bill of exceptions, unless perhaps it should appear that there was absolutely no evidence to support the judgment; nor can we perceive any satisfactory reason growing out of the object and purposes of a motion for a new trial why the same rule of practice should not prevail in the one case as in the other.
However, since the instant case was tried before a jury, the only question to be determined on this appeal is whether the pleadings sustain the verdict, and there being no contention to the contrary or any grounds therefor, the judgment must be and it is affirmed.
