and essential to a recovery, are unsupported by any evidence, a motion for a new trial should be granted.88

The statute requiring a new trial when a verdict has been vacated does not apply to the vacation of a special verdict returned in an equity suit which the court has set aside as contrary to the evidence and made findings in disregard thereof.87

A defendant is entitled to a new trial, where the special findings would require a judgment for him, except for the possible existence of facts not negatived by the evidence, and not covered by the general verdict against him.88

Material special findings inconsistent with the general verdict require a new trial.89

§ 1502. Amount of recovery

90

The principle requiring a verdict to be set aside which is not justified by any hypothesis presented by the evidence in respect to the amount of same applies only where the damages sought are liquidated. However, where the trial judge is not satisfied with the amount of the verdict, after a consideration of the evidence, believes it to be excessive 2 or grossly inadequate, he should grant a new trial.93

and

Parsons Ry. & Light Co., 100 Kan. 122, 163 P. 1059. Where a verdict rests in part upon a special finding which is set aside for lack of support in the evidence, a new trial should be granted. Id.

86 Atchison, T. & S. F. R. Co. v. Long, 26 P. 682, 46 Kan. 260.

87 Butts v. Butts, 114 P. 1048, 84 Kan. 475.

88 McMahon v. Joplin & P. Ry. Co., 150 P. 566, 96 Kan. 271.

89 Where, in a brakeman's action for injuries, certain findings of fact showed proper care and others negligence, and the general verdict was inconsistent with due care, a new trial should have been granted. Anders v. Atchison, T. & S. F. Ry. Co., 137 P. 966, 91 Kan, 378.

90 St. Louis & S. F. R. Co. v. Model Laundry, 141 P. 970, 42 Okl. 501.

91 Thompson v. Burtis, 70 P. 603, 65 Kan. 674; Cincinnati Discount Co. v. Asher, 101 Kan. 253, 166 P. 476; Hart v. Gerretson Co., 138 P. 595, 91 Kan. 569.

Where a verdict in conversion is for a gross sum in excess of the combined value of the property, and the time and money expended in its recovery, and it cannot be known what sum was allowed as actual and what as exemplary damages, and the evidence of expenses of pursuit was indefinite, the verdict should be set aside. Fitch v. Green, 39 Okl. 18, 134 P. 34.

92 Yard v. Gibbons, 149 P. 422, 95 Kan. 802; Chicago, B. & Q. R. Co. v. Guild, 45 P. 452, 3 Kan. App. 736; Collins v. Morris, 165 P. 862, 101 Kan. 135. In an action against a city for injuries caused by a defective sidewalk, a 93 See note 93 on following page.

It is error to overrule a motion for a new trial, and render judgment upon a verdict based on two causes of action, which is in excess of the amount recoverable on the first, and when the second does not state facts sufficient to constitute a cause of action."

§ 1503. Mistake, passion, or prejudice

The verdict will not be set aside, unless the jury was biased or palpable error was committed.95

A verdict which is the result of prejudice should never be the basis for a judgment, but it is the duty of the court to set it aside, and award a new trial.96

Where some of the material findings of the jury are against the evidence, and others are unsatisfactory, and it appears thereby that the findings have been given under the influence of passion or prej udice, or at least that the jury have not intelligently or fairly considered the evidence, a new trial will be granted."7

Error in computing the number of months of services where the value of services per month had been determined and there was no substantial dispute as to the period of services would not indicate prejudice of the jury.98

Excessive damages are not ground for a new trial, unless so great

verdict was rendered for $7,500. The trial court found the verdict excessive, and permitted a remittitur of $5,000, and rendered judgment for $2,500. The jury were not advised of any basis by which they might estimate the probable duration of plaintiff's life. Held, that the error of the jury might be attributed to a mistake of judgment, free from unfair intent, and the refusal of a new trial was not error. City of Argentine v. Bender, 80 P. 935, 71 Kan. 422, 93 Miller v. Miller, 105 P. 544, 81 Kan, 397; Jackson v. City of Humboldt, 113 P. 1047, 84 Kan. 445.

Where the sole question is whether plaintiff is entitled to recover on the contract, and there is no dispute on the amount, or basis for a finding that defendant owes a less sum than claimed, a verdict for half the amount should be set aside at the instance of either party. Bressler v. McVey, 108 P. 97, 82 Kan. 341.

94 Fish Keck Co. v. Redlon, 53 P. 72, 7 Kan. App. 93.

95 Muskogee Electric Traction Co. v. Wimmer, 80 Okl. 11, 194 P. 107. 96 Drumm v. Cessnum, 58 Kan. 331, 49 P. 78; Atchison v. Plunkett, 59 P. 646, 61 Kan. 297, reversing 55 P. 677, 8 Kan. App. 308.

Knowledge of the jurors as to value of land and statement made relative thereto in the jury room held not to show that the verdict was given under the influence of passion and prejudice. Hamilton v. Atchison, T. & S. F. Ry. Co., 148 P. 648, 95 Kan. 353.

97 Southern Kansas Ry. Co. v. Michaels, 30 P. 408, 49 Kan. 388. 98 In re Jewell's Estate, 103 Kan. 381, 173 P. 923.

as per se to indicate that they were given under the influence of passion or prejudice."9

§ 1504. Surprise, accident, or mistake

It is not error to overrule a motion for a new trial on the ground of surprise which ordinary prudence could not have guarded against, where it appears from the record that reasonable diligence on the part of defendants would have prevented the possibility of the alleged surprise and that no surprise was manifested at the trial and no delay was asked on account of any supposed surprise, and it does not appear that the new trial would necessarily or even probably lead to a different decision.1

Thus a new trial will not be granted for accident and surprise

99 St. Louis, I. M. & S. Ry. Co. v. Lewis, 136 P. 396, 39 Okl. 677.

1 Board of Regents of Kansas State Agricultural College v. Linscott, 1 P. 81, 30 Kan. 240; Beachley v. McCormick, 21 P. 646, 41 Kan. 485; Beal v. Codding, 4 P. 180, 32 Kan. 107.

One is entitled to his day in court, and to a fair and reasonable opportunity to present and establish his claim or defense, and his failure to do so when given an opportunity affords no basis for a new trial, without exceptional facts excusing his failure. Missouri, K. & T. Ry. Co. v. Taylor (Okl.) 170 P. 1148.

Laches of party in failing to appear when case was called for trial held no ground for new trial. Cherry v. Milam (Okl.) 168 P. 241.

Refusal to grant a new trial sought for negligence of defendant corporation's agent in misplacing copy of summons and not notifying defendant of service is not an abuse of discretion; such negligence not being "accident or surprise," etc., within the meaning of the statute. Missouri, K. & T. Ry. Co. v. Ellis, 53 Okl. 264, 156 P. 226, L. R. A. 1916E, 100.

In action for price of law books, application for new trial for surprise by defendant's production of letter modifying written order, held not supported by a sufficient showing of diligence, Edward Thompson Co. v. Foster, 165 P. 841, 101 Kan. 14.

Where, upon the trial, plaintiff discovered a misprint in the statute upon which he had brought his action, thereby requiring him to change his theory and necessitating new witnesses, if he fails to at once call the attention of the court to the misprint and his mistake caused thereby, and the necessity of delay to procure witnesses, he cannot obtain a new trial upon the ground of "accident and surprise" arising from his discovery of the misprint, nor procure as "newly-discovered evidence" the witnesses to make his proof. City of Argentine v. Simmons, 52 P. 424, 59 Kan. 164.

Refusal of new trial on the ground that plaintiff had been away and did not expect the trial to be reached so soon held not error, where it did not appear that plaintiff had used proper diligence. Daly v. Gregg, 138 P. 614, 91 Kan. 506.

caused by the evidence, where the pleading discloses the facts which that evidence tends to prove.2

The fact that perjured testimony was given by the plaintiff on the trial is not ground for a new trial, where the testimony was strictly in support of the allegations of the party's petition, and the applicant was not therefore surprised.

8

Where the defendant's evidence is admitted without objection, and no application for a postponement of the trial is made, plaintiff cannot urge, as ground for a new trial, that there was a variance between the answer and the evidence, by which he was surprised.*

A party surprised during a trial, upon a discovery of a mistake that will prejudice his interest, should immediately move for continuance or for such delay as will permit him to meet properly the issue, and cannot be permitted to speculate upon the verdict and afterwards for the first time on motion for new trial raise the question of surprise."

Where a new trial is sought on account of the absence of a material witness at the trial, diligence to ascertain the whereabouts of such witness and secure his attendance must be shown.

A party against whom judgment is rendered for any default of appearance may file a motion for new trial."

Where, in an action on a note, plaintiff alleged that he was the owner and holder, and one of the makers entered his voluntary ap

2 Tiger Drill Mfg. Co. v. Rice, 149 P. 742, 95 Kan. 816; Washington v. Byers, 53 P. 150, 7 Kan. App. 812.

A new trial for surprise in the evidence of adversary's witnesses on the issue in the case, where they had made no statements prior to the trial, will not be granted. Knuffke v. Knuffke, 56 P. 326, 8 Kan. App. 857.

3 Marshall v. Marshall, 54 P. 461, 7 Okl. 240.

4 Tripp & Moore Boot & Shoe Co. v. Martin, 26 P. 424, 45 Kan. 765. 5 McCants v. Thompson, 115 P. 600, 27 Okl. 706; Herring v. Hood, 55 Okl. 737, 155 P. 253.

One submitting a case without asking opportunity to procure further testimony cannot ask for a new trial as a matter of right because surprised by the evidence. Owensboro Wagon Co. v. D. A. Wilson & Co., 101 P. 4, 79 Kan. 633.

A new trial for inability to procure a witness is properly denied, where no application for continuance was made when the case was called for trial. Hanson v. Kendt, 146 P. 1190, 94 Kan. 310; Burford v. Benton, 44 Okl. 283, 144 P. 349.

• Pasho v. Blitz, 162 P. 1161, 99 Kan. 421.

Laclede Oil & Gas Co. v. Miller (Okl.) 172 P. 84.

pearance, and judgment was rendered against him by default, and the note filed with the judgment showed a material alteration, it was error to refuse a new trial on the ground of accident and surprise.

A judgment will be reversed, because of the court's refusal to grant a new trial, where, in plaintiff's absence, a trial was had at a term prior to that at which the action first became triable, or where a case which had been set for trial was reset for an earlier date and the party objecting was not given notice prior to the day the case was called.10

The district court is authorized to grant new trials only for the causes, in the manner, and within the time set forth in the statute, and it is manifest error to grant a new trial because the complaining party is unable to procure any one who can transcribe a stenographer's shorthand notes of the proceedings 11 or because the stenographer, who took the testimony at a trial, has lost his notebook and is unable to make a transcript.12

If errors properly presented on appeal from a judgment necessitates a review of the evidence and it is impossible to make a casemade incorporating the testimony, through no fault of such party, a new trial will be granted.18

It is a condition precedent to entitle complaining party to new trial under the statute that he be without fault as to the cause rendering it impossible to make a case-made, and when impossibility is due to lost papers, and such papers can be and are not substituted, the complaining party is not entitled to a new trial.1

14

Miscarriage of a case-made, in transmission from one firm of attorneys to another, preventing appeal, is not an unavoidable casualty and misfortune preventing parties from prosecuting or defending, and does not authorize a new trial.15

Nolen v. McCue, 142 P. 958, 92 Kan. 870, rehearing denied 144 P. 255, 93 Kan. 306.

• Bostwick v. Blair, 43 P. 297, 2 Kan. App. 89.

10 Leighton v. Dixon, 22 P. 732, 42 Kan. 616.

11 Butts v. Anderson, 91 P. 906, 19 Okl. 367.

12 Farmers' & Merchants' Bank v. Welborn, 121 P. 620, 32 Okl. 1.

13 Laclede Oil & Gas Co. v. Miller (Okl.) 172 P. 84.

14 Peck v. McClelland (Okl.) 166 P. 78.

15 Bucy v. Ardmore Brick & Tile Co., 61 Okl. 302, 160 P. 1126, L. R. A. 1917B, 1073.

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