Moody v. Branham

47 Kan. 314

• Court: Supreme Court of Kansas
• Decided: July 15, 1891
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

On the 14th day of January, 1887, in the district court of Crawford county, B. F. Branham recovered a judgment against I. W. Moody for the sum of $243.32 and costs. The court adjourned the day that this judgment was rendered. On the 7th day of November, 1887, Moody filed his petition for a new trial, upon the ground of surprise which ordinary prudence could not have guarded against, and also for misconduct of the plaintiff below. A demurrer was filed to the petition, alleging that it did not state facts sufficient to constitute a cause of action. No ruling was made upon the demurrer, but the defendant withdrew the same and on September 14, 1888, with leave of the court, filed a motion to strike the petition from the files, upon the ground that it was not verified as required by law. Thereupon the plaintiff, with leave of the court, filed a new or amended verification. The motion to strike the petition from the files, as amended and verified, was sustained. The plaintiff below excepted and brings the case here.

The petition for the new trial seems to have been filed under §310 of the civil code. Said section reads as follows:

“ Where the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after the term at which the verdict, report of referee or decision was rendered or made, the application may be made by petition, filed as in other cases, not later than the second term after discovery; on which a summons shall issue, be returnable and served, or publication made, as prescribed in § 74. The facts stated in the petition shall be considered as denied without answer, and if the service shall be complete in vacation, the case shall be heard and summarily decided at the ensuing term, and if in term, it shall be heard and decided after the expiration of 20 days from such service. The case shall be placed on the trial docket, and the witnesses shall be examined in open court, or their depositions taken as in other cases ; but no such petition shall be filed more than one year after the final judgment was rendered.”

The causes for a new trial alleged in the petition were among those stated in § 306 of the civil code. No verification is required to a petition filed under the provisions of said § 310, and therefore the failure to verify the petition for a new trial was not sufficient ground to strike it from the files.

No brief has been filed upon the part of plaintiff below, and we have before us for consideration only the record filed and the brief of plaintiff in error.

The order and judgment of the district court will be reversed, and the cause remanded.

All the Justices concurring.