Special findings by a jury in an equitable action are not effective until adopted by the court, and the time for filing a motion for a new trial should be computed from the date of that event."9

A motion for a new trial of a partnership accounting not filed within the time limited after the referee's report was confirmed, or after the sale of the property was confirmed and final judgment ordered, is too late, though within the time after the formal entry of the judgment.70

Where a motion is heard and overruled two months after verdict, and the record is silent as to when it was filed, it will be presumed that it was not filed within the statutory time."1

Where a jury after reporting its verdict and special findings is sent back to make one of the latter more definite, a motion for new trial, filed while the jury is out for that purpose, is not prematurely filed where there is evidence that the clerk was requested to hold it until the return of the jury, and indorsements on the motion and the special findings show a simultaneous filing, and the trial court having heard the motion on the merits.72

The court does not abuse its discretion in granting defendant a new trial on a motion filed seven days after judgment when such motion is sustained by affidavits showing a good defense, and that defendant was absent from trial on account of dangerous illness in his family, and could not appear in court sooner to defend the action, or ask for new trial.73

Where a jury finds for plaintiff, and also makes special findings, and defendant immediately moves for judgment on the findings, and the hearing of this motion is continued to the third day, and the fourth day is Sunday, and the fifth day defendant appears and files a motion for a new trial, setting forth nearly all the statutory grounds, and showing that he was unavoidably prevented from filing the motion on the third day, the court does not err in entertaining the motion.74

* Jenkins v. Kirtley, 79 P. 671, 70 Kan. 801.

70 Alexander v. Clarkson, 150 P. 576, 96 Kan. 174.

71 Burtiss v. La Belle Wagon Co., 25 P. 852, 45 Kan. 413.

72 Atchison, T. & S. F. Ry. Co. v. Davis, 79 P. 130, 70 Kan. 578.

73 Hemme v. School Dist. No. 4, 1 P. 104, 30 Kan. 377.

74 Fudge v. St. Louis & S. F. Ry. Co., 1 P. 141, 31 Kan. 146.

The pendency of a motion for judgment on the special findings of the jury, a general verdict being also rendered, affords no excuse, within Gen. St. 1897, HON.PL.& PRAC.-92 (1457)

The filing of a written motion for a new trial, containing the grounds therefor, with the clerk of the court in which a case has been tried, within three days after the verdict or decision was rendered, is a sufficient compliance with the statute, relating to the time within which an application for a new trial must be made, without an actual presentation of such motion to the court within the three days.75

In proceeding under the statute to determine paternity of bastard child and to enforce support, the time for filing a motion for a new trial runs from return of verdict, and not from judgment."

§ 1510. Requisites-Application

76

It is sufficient to set forth the grounds for new trial in the language of the statute; 77 but it is not necessary to use the language of the statute as a ground for new trial if definite and specific causes coming within one of the statutory grounds are alleged."

Where exceptions to charge are properly saved, it is not necessary to set them out in separate paragraphs in motion for new trial.79

Where, after verdict, the defeated party files a motion "to set aside and vacate the verdict of the jury," on the grounds that the verdict is not sustained by sufficient evidence and is contrary to law, and for errors of law occurring at the trial and excepted to, although the motion does not in terms purport to be a motion for a new trial, but only "to set aside and vacate the verdict of the jury," the supreme court will treat it as a motion for a new trial, where it has been so treated by both parties and by the trial court.80

A motion for new trial for newly discovered evidence should set forth the names and place of residence of the witnesses, what they would testify to, and facts must be set out showing diligence and

c. 95, § 318, for failure to file the motion for a new trial within three days after the rendition of the verdict. Clement, Bane & Co. v. Hartzell, 56 P. 504, 60 Kan. 317.

75 Freelove v. Gould, 45 P. 454, 3 Kan. App. 750.

76 Powelson v. State (Okl.) 169 P. 1093.

77 Spadra-Clarksville Coal Co. v. Nicholson, 93 Kan. 638, 145 P. 571, Ann. Cas. 1916D, 652.

78 Glaser v. Glaser, 74 P. 944, 13 Okl. 389.

79 St. Louis & S. F. Ry, Co. v. Dobyns, 57 Okl. 643, 157 P. 735.

80 Hartley v. Chidester, 13 P. 578, 36 Kan. 363.

negativing fault of movant; 81 but the motion need not be verified. It is sufficient if it is sustained by an affidavit presented at the hearing of the motion.82

§ 1511. Statement of grounds and specification of errors

The eighth statutory cause for new trial, viz., "error of law occurring at the trial and excepted to by the party making the application," will, when embraced in the motion for new trial, present to the trial court any objection or exception properly made and saved during the progress of the trial.83

A motion on the ground that the court failed to admonish the jury upon adjournments as required by law should allege such failure, and the allegations should be supported by competent evidence showing that fact.84

A motion because "the verdict is contrary to law," because of insufficiency of evidence, adds nothing to the further ground that the verdict is not sustained by sufficient evidence.85

A motion, assigning as grounds that the verdict was unsupported by evidence and is contrary to weight thereof, authorizes trial court to set aside verdict which is contrary to weight of evidence.s

A motion assigning "excessive damages" which did not charge that they were given under the influence of passion or prejudice, does not comply with the requirements of the statute.87

But a motion for a new trial on the ground of error in the assessment of the amount recovered, and that the findings are not sustained by sufficient evidence, is sufficient to challenge the correctness of the judgment as to the amount thereof, and as to wheth

81 McCants v. Thompson, 115 P. 600, 27 Okl. 706.

A motion on the ground of newly discovered evidence for a new trial must set forth the witness' name and residence and testimony. Rock v. Craig & Osborne, 78 Okl. 254, 190 P. 388.

A motion for new trial on the ground of newly discovered evidence, must show that applicant used due diligence to procure and present the evidence on the trial, and the facts constituting such diligence must be stated, so that the court may pass upon the question. Burns v. Vaught, 113 P. 906, 27 Okl. 711.

82 St. Louis & S. F. R. Co. v. Gaston, 72 P. 777, 67 Kan. 217.

$3 Boyd v. Bryan, 65 P. 940, 11 Okl. 56.

84 Brink v. Territory, 41 P. 614, 3 Okl. 588.

85 Norman v. Lambert, 64 Okl. 238, 167 P. 213.

86 Horton v. Prague Nat. Bank, 60 Okl. 240, 159 P. 930.

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

er or not there is any evidence to support the findings of fact on a particular issue.88

Where a number of special findings are made against the party in whose favor a general verdict is rendered, a motion for a new trial, on the ground that the verdict is against the evidence, means that the special findings are against the evidence. 8°

Where a motion recites "erroneous rulings" as one of its grounds, appellant can have a review of any ruling respecting the admission of evidence.90

Any matter for which a new trial may be granted is waived, if not embraced in the motion therefor."1

91

Where a motion for a new trial is sustained and the report of a referee entirely set aside the effect of the order is to grant a new trial, and it is erroneous for court to make other findings of fact and render judgment thereon.""

92

The statute implies the existence of some one having the right to sue and be sued, and where, after death of a plaintiff recovering judgment, defendant's petition for new trial was filed before a representative of plaintiff's estate was appointed, the petition was a nullity, and could not be entertained on process thereunder and service upon the administrator more than one year after judgment."

§ 1513. Extrinsic evidence

The statute providing that, where the ground of a motion for new trial is the exclusion of evidence, such evidence shall be produced at the hearing, does not apply where it appears from the testimony at the trial what the excluded evidence would have been.o1 94

Where at a trial it was discovered that certain depositions were missing, and the trial was proceeded with without objection, the

88 Richardson v. Mackay, 46 P. 546, 4 Okl. 328.

89 Swan v. Bevis Rock Salt Co., 119 P. 871, 86 Kan. 260.

90 Spadra-Clarksville Coal Co. v. Nicholson, 93 Kan. 638, 145 P. 571, Ann. Cas. 1916D, 652.

91 Baker v. Citizens' State Bank of Okeen (Okl.) 177 P. 568; First Nat. Bank v. Farmers' State Guaranty Bank of Thomas, 62 Okl. 30, 161 P. 1063; St. Louis, I. M. & S. Ry. Co. v. Lewis, 136 P. 396, 39 Okl. 677.

92 James v. Coleman, 64 Okl. 99, 166 P. 210.

93 Monson v. Battelle, 103 Kan. 470, 173 P. 927.

94 Treiber v. McCormack, 136 P. 268, 90 Kan. 675, Ann. Cas, 1915B, 943.

overruling of a motion for a new trial supported by such depositions, afterwards found, was not an abuse of discretion.95

Refusal to permit the introduction of oral testimony in support of a motion for a new trial has been held not an abuse of discretion.96

The mere expression of the opinions of witnesses that the court entertained bias and prejudice for and against some of the parties in the action, without a statement of the facts and grounds on which such opinions were founded, cannot be regarded as testimony, and is entitled to no consideration in an application for a new trial.97 § 1514.

Jurors

Affidavits of jurors are admissible to establish facts connected with their deliberations, which do not inhere in the verdict and are not alone within the personal consciousness of a juror; but affidavits that they took with them to their jury room a bank book, a part of which had been introduced in evidence, and that they considered the entire book, could not be considered in support of motion for new trial.98

A juror cannot in support of a motion for new trial give testimony to impeach his verdict.""

Declarations and admissions of jurors, made subsequent to the rendition of their verdict, are not admissible in support of a motion to set it aside.1

95 Woolsey v. Ziegler, 123 P. 164, 32 Okl. 715.

96 Myers v. Cabiness, 44 Okl. 671, 146 P. 33.

97 Winfield Nat. Bank v. Croco, 26 P. 939, 46 Kan. 620.

98 Carter State Bank v. Ross, 52 Okl. 642, 152 P. 1113; Missouri, O. & G. Ry. Co. v. Smith, 55 Okl. 12, 155 P. 233.

On a motion for a new trial in condemnation procedings, a juror was asked if the jury did not first agree on a general verdict, and then answer the special interrogatories with a view to agreeing to the general verdict without reference to the particular damages to any particular part of the land taken. Held, that the question was improper, as the reasons for a verdict, or any element that goes to make it up, or the particular ideas of the jurymen, are not open to inquiry. Leroy & W. Ry. Co. v. Anderson, 21 P. 588, 41 Kan. 528; Brice-Nash v. Barton Salt Co., 83 Kan. 447, 111 P. 462.

99 Chicago, R. I. & P. Ry. Co. v. Brown, 55 Okl. 173, 154 P. 1161; Kennedy v. Pulliam, 60 Okl. 16, 158 P. 1140; Tulsa St. Ry. Co. v. Jacobson, 136 P. 410, 40 Okl. 118; Baumle v. Verde, 50 Okl. 609, 150 P. 876.

Affidavits of three jurors held insufficient to impeach verdict on the ground that the effect thereof was misunderstood. Pitchlynn v. Cherry, 121 P. 196, 32 Okl. 77.

1 Cain Bros. Co. v. Wallace, 26 P. 445, 46 Kan. 138.