Church v. Goodin

22 Kan. 527

• Court: Supreme Court of Kansas
• Decided: July 15, 1879
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

Counsel claiming a reversal of the judgment of the district court, contends that the execution in the case of Goodin v. Church was wrongfully issued, as the motion for a new trial was pending and undisposed of at the date of its issue, and therefore that the action of Goodin v. Church and his sureties, upon the appeal bonds, was prematurely brought. At common law the motion for a new trial suspended the judgment and all its effects until the motion was disposed of. In this country, this rule of the common law has been very generally supplanted by statutory provisions, and in order to obtain a stay of execution, the proceedings prescribed by statute must be strictly pursued. When a trial by jury has been had in this state in the district court, judgment must be entered by the clerk in conformity to the verdict, unless it is special, or the court order the case to be reserved for future argument or consideration. (§409 of the civil code.) After the judgment is fully recorded, it is valid and has force and effect, notwithstanding the pendency of the motion for a new trial. Where a stay is desired pending the hearing of this motion, an order of the court to that effect should be obtained. The power of courts to temporarily stay the issuing of execution, is exercised in an almost infinite variety of circumstances, in order that the ends of justice may be accomplished, and to prevent hardships. The better practice would be, where a motion for a new trial goes over to the next term, for the court to enter an order staying the issuance of an execution until such motion is disposed of; and generally, on the return of a verdict where notice of a motion for a new trial is given, or where the motion is filed, the case should be reserved for future •consideration, and the entry of judgment on the verdict delayed until a hearing is had upon the motion. If this be •done, the party moving for a new trial will not be compelled to obtain any stay, as no execution can issue until the judgment is entered in full upon the journal. After the judgment has been entered, the party moving for the new trial, or for & vacation or modification of the judgment, must apply to the court to obtain a stay, if such stay is necessary for the protection of his legal rights. In the case of Goodin v. Church, no stay was applied for, and as we do not think the pendency of a motion for a new trial necessarily stays proceedings upon the judgment, we perceive no error in the record before us.(People v. Loucks, 28 Cal. 68.)

■The judgment of the district court will be affirmed.-

All the Justices concurring.