Kansas City, Fort Scott & Memphis Railroad v. Berry

55 Kan. 186

• Court: Supreme Court of Kansas
• Decided: January 15, 1895
• Status: Published

Opinion

The opinion of the court was delivered by

Allen, J. :

The facts in this case as it was first presented to this court appear in 52 Kas. 759. This court, on the case then submitted, held that the district court erred in refusing to receive and enter the verdict of the jury, and directed that judgment be entered in favor of the plaintiff for the amount of the verdict. A mandate was duly issued and filed in the district court of Bourbon county, and on the 16th day of May, 1894, it was presented to the court with a motion for judgment thereon. Thereupon the defendant filed a motion for a new trial on various grounds. This motion was overruled, and the defendant excepted. A journal entry incorporated in the case-made recites :

“Now on this May 16, 1894, came on to be heard the above-entitled cause on plaintiff’s motion for judgment on the supreme court’s mandate filed here May 9, 1894, the plaintiff appearing by her attorney, E. P. Ware, and defendant by its attorney, I. P. Dana. Defendant asked the court to allow it a reasonable time, before rendering any judgment in plaintiff’s favor, to file here a transcript of the testimony introduced at the trial of the cause in January, 1890, and a transcript of the charge given by the judge to the jury at that trial, and also asked the court for leave to present to it for review errors of law which occurred at said trial; each of which requests and applications the court refused and overruled, and to each such ruling of the court defendant at the time duly excepted and excepts. Thereupon, arguments having been heard on plaintiff’s said motion, the court doth order, adjudge and decree : First, That the judgment heretofore rendered herein pn January 18, 1890, which is recorded in journal “P,” at page 433 of the records of this court, be set aside and held for naught, said judgment being the one rendered in favor of the defendant and against the plaintiff for costs; second, that the plaintiff have and recover of and from the defendant the sum of $5,000, the amount named, in the verdict of the jury, in favor of plaintiff, filed January 18, 1890, together with 6 per cent, interest thereon from the date of said verdict, being a total sum of sixty-two hundred and ninety-eight ($6,298) dollars.”

Twenty-five days were given the defendant to make and serve a case for this court. The defendant then filed a motion for rehearing, which was overruled. (52 Kas. 774.)

Counsel for plaintiff in error argue with great earnestness and force that the general verdict in favor of. the plaintiff for $5,000 and the special findings of fact were never recognized by the trial court as verdicts until after the mandate of this court was presented directing that they be received and filed and judgment entered thereon ; that at the time of the trial the court refused to receive or recognize these verdicts as verdicts, but directed a general verdict in favor of the defendant, on which it entered judgment; that however much the court might have erred in the conduct of the trial, however unsupported by law or the facts the verdict on -which this court directed judgment to be entered might be, the defendant, having a verdict in its favor and a judgment thereon, not only was not called on to file a motion for a new trial, but that there was absolutely no foundation for any such motion. It is further insisted that vitality was first given to the verdict by the order and judgment of this court, and that not until its mandate was presented to the district court did the verdict of the jury have any force as a verdict; that the defendant was then for the first time called upon to challenge its correctness, or the proceedings of the court at the trial. These views impress us as sound.. The defendant was under no obligation to recognize a verdict as valid which the court refused to receive or act upon. This court held that the district court erred in refusing to receive the special findings and the general verdict in favor of the defendant, and in refusing to treat them as verdicts, and directed that they should be so received and treated.

1. Verdict, refusal to receive — received supreme mandate. 8' S-roiieouT allowance. We think the defendant then had a right tó file a motion for a new trial within the statutory time after the mandate of this court was presented ; that it was then the duty of the court to pass on the motion for a new trial, and that on such motion being overruled the defendant had a right to make a case and present to this court any errors occurring at the trial. If this were not so, the defendant would be utterly without remedy, no matter how many or serious the errors of law occurring at the trial might have been. On examining the record, however, we find nothing to avail the defendant in attacking the verdict. A motion for a new trial was duly presented, overruled by the court, and an exception to such ruling taken by the defendant. The defendant asked time to file in that court a transcript of the testimony introduced at the trial, and of the charge to the jury, and for leave to present errors of law which occurred at the trial. These requests were refused, and properly so, Of course, on the motion for a new trial the defendant had the right to present to the court for review errors of law which occurred at the trial; but there is nothing in the record showing that the defendant was prevented from calling the attention of the court to any and every matter proper to be „ considered on the motion lor a new trial. The defendant had no right to take time* to obtain a transcript of tlie testimony and* charge of the court to he filed in the district court. All errors of law or in the proceedings at the trial could be presented without it. Time was in fact given the defendant to make a case, hut neither the pleadings, original journal entry, evidence, nor charge of the court, are contained in the case. There is absolutely nothing in the case before us showing anything about what was done at the trial. We, therefore, are not called on to consider any question with reference to the correctness of the verdict which was not finally disposed of on the former hearing of this case.

2' Sottontor, ?Jviewíeil_ Another question is, however, fairly presented by the record. The court not only entered judgment for $5,000, the amount of the verdict, but added thereto interest from the date of its return by the jury. The question as to whether interest may be allowed on verdicts, prior to judgment, has been fully discussed, and authorities are cited on both sides. In support of the ruling of the court are cited the cases of Gibson v. Enquirer, 2 Flippin, 88 ; Griffith v. Railroad Co., 44 Fed. Rep. 574; and against it Kelsey v. Murphy, 30 Pa. St. 340 ; 11 Am. & Eng. Encyc. of Law, 379, 380, and 391; Bowman v. Wilson, 2 McCr. 394 ; In re Clyde, 12 Blatchf. 403 ; Hamer v. Kirkwood, 25 Miss. 95 ; Reece v. Knott, 3 Utah, 451; Redfield v. Iron Co., 110 U. S. 174; Railroad Co. v. Gabbert, 34 Kas. 132 ; Simmons v. Garrett, McCahon, 82 ; Association v. Hitchcock, 4 Kas. 36 ; Wilson v. Means, 25 id. 83. In some states interest on verdicts is expressly allowed by statute, but not in •this state. We think the general rule to be gleaned from the authorities is that where delay in entering judgment on the verdict is occasioned by the act of the party against whom it is rendered, interest is allowed. (Irvin v. Hazelton, 37 Pa. St. 465 ; Shephard v. Brenton, 20 Iowa, 41; Bull v. Ketchum, 2 Denio. 188.) It cannot be said that the delay in entering judgment resulted from any action of the defendant. It is true that the defendant has at all times contested the plaintiff’s right of recovery, has at all times denied liability, but the contention of the defendant was sustained by the district court, which held that there was no liability. The view we take of this case, however, renders it unnecessary to decide the question whether a verdict bears interest from the time of its rendition or not. The verdict was never recognized, nor received as a verdict by the district court until it was done in obedience to the mandate of this court. It then for the first time was given force and vitality. At the termination of the trial, although the jury made such findings that this court afterward held that the company was liable for the amount found by the jury, yet the district court recognized and received the verdict in favor of the defendant, which it ordered, and- rendered judgment thereon in favor of the defendant for costs. Though the jury found that the defendant was liable, the trial court held that under the law there was no liability. The plaintiff then had failed to establish her right to the payment of any sum from the defendant. There -was neither a judgment nor a verdict recognized as valid by the district court. No demand was established which the defendant was called on to discharge until judgment was entered on the findings of the jury in accordance with the mandate of this court. The claim in this case, as in that of Railroad Co. v. Gabbert, supra, was for damages resulting from a tort, not recoverable at all at common law, but solely by reason of a statute of the state. The damages were wholly unliquidated prior to the judgment, and no interest accrued or could accrue, before a verdict was rendered. We think no liability was ever established against the defendant until the 16th day of May, 1894, when judgment was in fact rendered.

The district court is directed to modify the judgment by striking out the allowance of interest so that it will stand as a judgment rendered on the 16th day of May, 1894, for $5,000, from which date it will bear interest at 6 per cent. The costs in this court will be equally divided.

All the Justices concurring.