Opinion
Filed July 30, 1898.
APPEAL — Review — Refusal of New Trial. Although a motion for a new trial be filed in the court below upon grounds for which a new trial may be granted, and the motion be overruled, the supreme court will not consider these grounds, unless, in the petition in error, the overruling of the motion for a new trial is assigned as error.
(Syllabus by the Court.)
Error from the District Court of Canadian County; before John H. Burford, District Judge.
John H. Pitzer, for plaintiff in error.
F. E. Gillette and W. D. Libby, for defendants in error.
Action by the J. J. Douglas Company against J. M. Sparks and others. Judgment for defendants, and plaintiff brings error. Dismissed.
Opinion of the court by
This case is considered upon the motion of the attorneys for the defendants in error, filed May 27, 1897, for an order dismissing the cause, upon the ground that the petition in error fails to assign any reviewable error for the consideration of the court. The motion for a new trial by the plaintiff below, who is also plaintiff in error here, is for the reasons (1) that the verdict and decision are not sustained by sufficient evidence, and are contrary to law; and (2) for errors of law occurring at the trial, and excepted to by the plaintiff. The motion was overruled. The errors here assigned were upon errors alleged to have occurred at the trial. The fact that the motion for a new trial was overruled was not assigned as error in the petition in error. It has been repeatedly determined, under our Code of Civil Procedure, adopted from Kansas, by the supreme court of Kansas, from which it was adopted, that even though a motion for a new trial be filed in the court below upon grounds for which a new trial may be granted, and the motion be overruled, the supreme court will not consider these grounds, unless, in the petition in error, the overruling of the motion for a new trial is assigned as error.
It was said in the case of Crawford v. Railroad Co. (Kan. Sup.) 25 P. 865, that: "Nor can any of the points or questions involved, and which were subject to review upon the motion for a new trial, be considered in this court, unless the overruling of that motion is assigned as error. ( Carson v. Funk, 27 Kan. 524; Clark v. Schnur, 40 Kan. 72, 19 P. 327; Landauer v. Hoagland, 41 Kan. 520, 21 P. 645; City of McPherson v. Manning, 43 Kan. 129, 23 P. 109.") The petition in error will therefore be dismissed.
Burford, C. J., having presided in the court below, not sitting; all the other Justices concurring.