§ 1491. Waiver Ordinarily any ground for which new trial may be granted is waived by failure to demand it." A defendant does not waive a motion for new trial filed in due time by subsequently filing an unauthorized supplemental motion for new trial. 10 A motion for a judgment on special findings, notwithstanding the general verdict, and one for a new trial, may be filed by the defendant at the same time; and the submission and decision of the former motion will not operate as a waiver of the latter.11 The mere payment of a judgment into court, without acceptance by plaintiff, does not oust the court of jurisdiction to grant plaintiff's motion for a new trial.12 § 1492. Second application Under some circumstances there may be a second application for a new trial; 13 but striking from the files a second petition for new trial for newly discovered evidence merely cumulative to that of fered on the first petition is not error.14 To authorize granting a second motion for a new trial filed after the expiration of the time for filing such motion, on the ground that movant's attorney was not notified of the hearing on the first motion, and given an opportunity to except, want of notice must appear affirmatively, and not by mere inference.15 9 McClain v. Chicago, R. I. & P. Ry. Co., 130 P. 646, 89 Kan. 24, Ann. Cas. 1914C, 699. 10 Pinkston v. Marlow, 58 Okl. 280, 159 P. 4SS. 11 Atchison, T. & S. F. R. Co. v. Holland, 49 P. 71, 58 Kan. 317. A favorable decision on a motion for judgment on findings notwithstanding the general verdict is not a waiver of a motion for new trial while the decision of the former motion is subject to review. Linker v. Union Pac. R. Co., 123 P. 745, 87 Kan. 186. 12 Spottsville v. Western States Portland Cement Co., 146 P. 356, 94 Kan. 258. 13 The court may during the term at which judgment was rendered grant new trial for misconduct of prevailing party in treating juror, though motion for new trial on other grounds has been previously overruled, and the court may set aside order denying new trial within the term on second motion of party. Jones v. Frank, 161 P. 795, 62 Okl. 26. 14 Lookabaugh v. Bowmaker, 122 P. 200, 30 Okl, 242, 15 Boorigie v. Boyd, 139 P. 253, 41 Okl. 550. § 1493. Pendency of application-Its effect The pendency of a motion for a new trial, in an action wherein judgment has been rendered, will not stay execution.16 However, after verdict and rendition of a judgment during pendency of a motion for new trial, the court may reserve the case for future argument, and either stay or arrest all process until disposition of the motion for new trial.17 1496. Rulings and instructions. Jurors-Disqualification-Misconduct-Communications. Defective verdict or findings. 1497. 1498. "A new trial is a re-examination in the same court, of an issue of fact, after a verdict by a jury, the approval of the report of a referee, or a decision by the court. The former verdict, report or decision shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party: "First. Irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial. "Second. Misconduct of the jury or prevailing party. "Third. Accident or surprise, which ordinary prudence could not have guarded against. 16 Powell v. Bradley, 119 P. 543, 86 Kan. 198. "Fourth. Excessive damages, appearing to have been given under the influence of passion or prejudice. "Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property. "Sixth. That the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law. "Seventh. Newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. "Eighth. Error of law occurring at the trial, and excepted to by the party making the application. "Ninth. When, without fault of complaining party, it becomes. impossible to make case-made." 18 The grounds for a new trial as enumerated in this statute, are exclusive.19 § 1494a. Errors and irregularities in general A person is not entitled to a new trial as of right on motion.20 Where no objections are made, and exceptions saved to alleged errors at the trial, though assigned in the motion for new trial as grounds therefor, the motion is merely addressed to the discretion of the court.21 18 Rev. Laws 1910, § 5033. On refusal of the reporter to furnish a transcript of his notes, the party is presumptively entitled to a new trial. Cherry v. Brown, 79 Okl. 215, 192 P. 227. 19 Baker v. Citizens' State Bank of Okeen (Okl.) 177 P. 568; St. Louis, I. M. & S. Ry. Co. v. Lewis, 136 P. 396, 39 Okl. 677; First Nat. Bank v. Farmers' State Guaranty Bank of Thomas, 62 Okl. 30, 161 P. 1063. 20 Brown v. Parker, 39 P. 567, 2 Okl, 258. 21 Muskogee Electric Traction Co. v. Reed, 130 P. 157, 35 Okl. 334. A petition set forth the manner of the indebtedness of defendant to plaintiff, and defendant's answer was a general denial only. At the trial defendant's evidence tended to establish a counterclaim. Held, that an objection to such evidence, made for the first time on a motion for a new trial, was too late. Fiedler v. Motz, 22 P. 561, 42 Kan. 519. Where the attention of the trial court is not in any manner called to the claim of a party that the referee is biased or prejudiced, until after the ref eree has made his report, and judgment has been rendered thereon, the ques« tion cannot be raised by motion for a new trial. Brewer v. Asher, 56 P. 714, 8 Okl. 231. The question of a defect of or misjoinder or excess of parties plaintiff can A new trial will not ordinarily be granted to afford a party an opportunity to shift his ground of action or defense. 22 However, a new trial has been ordered where, in an action for injuries arising from a defective railroad crossing, the only theory on which a judgment can be sustained is that defendant was negligent in making the crossing, and it appears that the action was not tried on such theory, but on the theory that after the construction of the crossing it had got out of repair, and was negligently allowed to remain So.2 28 A new trial will be granted for an erroneous ruling on a demurrer to the evidence.24 Though several defendants whose interests are not entirely similar have in earlier stages of the case been represented by same counsel, refusal to allow one of them to have adverse witnesses cross-examined by separate counsel requires a new trial.25 Where the judge assailed in the presence of the jury, counsel for defendant with offensive language, such as to imply that he was an intruder in court, and the verdict was against defendant, a new . trial should be granted.20 In action for possession of real estate, objection for want of verification of reply denying execution of deed cannot be first raised on motion for new trial.2 Where, on the trial of a question of fact, material facts have been proved, but not found, the district court should be requested, before motion for new trial, to modify the findings to include addi not be raised for the first time on a motion for a new trial. Choctaw, O. & G. R. Co. v. Burgess, 97 P. 271, 21 Okl. 653. Under the rule in force in Indian Territory prior to its admission as a part of the state of Oklahoma, the question of misjoinder of parties could not be raised for the first time by motion for a new trial, but must have been taken advantage of either by motion or answer. Id. 22 Mallows v. Mallows, 144 P. 829, 93 Kan. 551. 23 Union Pac. Ry. Co. v. Springsteen, 21 P. 774, 41 Kan. 724. 24 A ruling on demurrer to the evidence being a decision occurring at the trial, to review which a motion for a new trial is necessary, on such a demurrer being sustained and a motion for a new trial filed, the court has power to grant it. Insurance Co. of North America v. Little, 125 P. 1098, 34 Okl. 449. 25 Angell v. Chicago, R. I. & P. Ry. Co., 156 P. 763, 97 Kan. 688, rehearing denied 157 P. 1196, 98 Kan. 268. 26 Walker v. Coleman, 55 Kan. 381, 40 P. 640, 49 Am. St. Rep. 254. 27 Effenberger v. Durant, 57 Okl. 445, 156 P. 212. HON.PL.& PRAC.-90 (1425) tional facts, or to make further findings covering such facts, and only on refusal to make the correction does ground for a new trial exist, 28 Where a jury was waived by defendant prior to the beginning of the trial, and no request having been made for a withdrawal of the waiver after an amendment of pleadings, defendant cannot complain for the first time on motion for a new trial that he had been deprived of the right of trial by jury.29 The fact that the clerk of the court, in issuing a summons, by mistake required defendant to answer in less time than required by law, which necessitated the issuance of an alias summons to bring defendant into court, is not ground for granting plaintiff a new trial, since the error was cured by the alias, and in no way affected the rights of plaintiff at the trial.30 § 1495. Misconduct A motion for new trial for misconduct of counsel, jurors, and parties is addressed primarily to the trial judge.31 In order that the misconduct of counsel for the successful party. may furnish sufficient ground for a new trial, it should appear that the verdict of the jury was probably influenced thereby.32 Misconduct of the prevailing party as ground for new trial may include acts amounting to misconduct, which, though occurring before, operate at the trial.33 That plaintiff's counsel was frequently interrupted in his argument by objections interposed by defendant's counsel does not require a new trial. 34 Where counsel for plaintiff, in his closing argument to the jury, 28 Shuler v. Lashhorn, 74 P. 264, 67 Kan, 694. 20 Alcorn v. Dennis, 105 P. 1012, 25 Okl. 135. 30 Menger v. North British & Mercantile Ins. Co., 61 P. 874, 10 Kan. App. 575. 31 Myers v. Cabiness, 44 Okl. 671, 146 P. 33. 32 Holman v. Raynesford, 44 P. 910, 3 Kan. App. 676. A new trial will not be granted for misconduct of an attorney unless the circumstances raise a reasonable suspicion that such misconduct improperly influenced the verdict. Easterly v. Gater, 87 P. 853, 17 Okl. 93, 10 Ann. Cas. 888. 33 Phares v. Krhut, 91 P. 52, 76 Kan. 238. 34 Engelkemeier v. Lillis, 54 Okl. 282, 153 P. 877. |