A written statement of

ing if it had been sufficiently sustained.22 the grounds of a decision granting new trial may aid in interpreting the recitals of the journal entry, though it cannot overcome such recitals.

comes on for hearing in the above entitled cause the motion of the said defendant, A. B., for a new trial, the same having been filed. herein on this date; and the said plaintiff being present in person and the said defendant, A. B., appear

and by his attorneys,

ing by his attorneys,

,

the said motion for new trial is taken

up, submitted, and presented to the court; and the court having heard the argument of counsel thereon and being fully advised in the premises, finds that said motion for a new trial should be overruled.

It is therefore by the court ordered, adjudged, and decreed that the motion of the defendant, A. B., for a new trial herein, be and the same is hereby in all things overruled, to which action and ruling of the court the defendant, A. B., duly excepts, and exceptions are by the court allowed and the same noted on the records of said court, and thereupon the said defendant, A. B., gives notice in open court of his intention to appeal from said judgment and decree of said court rendered and entered herein on the

day of

19, and the order and judgment of said court overruling said motion for a new trial, to the Supreme Court of the state of Oklahoma. And the court directs the clerk of this court to make entry upon the trial docket of said court of said notice of appeal of the said defendant, A. B. And the said defendant, A. B., praying an appeal to the Supreme Court of Oklahoma and an extension of time within which to make and serve case-made on appeal to the Supreme Court of Oklahoma, and for good cause shown and sufficient and satisfactory reasons, the court doth order that the said defendant, A. B. be granted an extension of days from this date to make and

22 Goff v. Goff, 158 P. 26, 98 Kan. 201, rehearing denied 158 P. 662, 98 Kan.

700.

serve a case-made on appeal to the Supreme Court, plaintiff to have ten (10) days thereafter to suggest amendments, and the same to be settled on five (5) days' notice by either party.

Done in open court the day and year first above written. District Judge.

When a motion has been heard and decided, the court has no jurisdiction at a subsequent term, to reopen and reconsider the motion.23

In the absence of a showing of irregularity, fraud, unavoidable casualty, or misfortune, the district court cannot set aside its order overruling a motion for a new trial upon a reconsideration of the motion; a reversal of such order can be had only by proceedings. in error.

24

A trial court, after a judgment and after the overruling of a motion for a new trial and the extension of time to make a case-made, may, at the same term, entertain a motion to set aside its denial of a new trial and grant new trial.25

Where, after the expiration of the term, a motion is made to set aside an order overruling a motion for new trial for unavoidable casualty, and it does not comply with the statutory requirements, a refusal to vacate was justified.26

An order vacating an order granting a new trial is not void for

23 Kingman & Co. v. Chubb, 55 P. 474, 8 Kan. App. 167.

After the expiration of the term at which judgment was rendered, the district court has no jurisdiction to set aside an order overruling a motion for a new trial. Missouri Pac. Ry. Co v. Mayberry, 64 P. 989, 63 Kan. 881. 24 Lookabaugh v. Cooper, 48 P. 99, 5 Okl. 102.

District court has jurisdiction to set aside an order denying a motion for a new trial and thereafter at same term to grant a new trial. District court is justified in vacating an order denying a motion for a new trial and in thereafter granting the motion at same term, when, because of a mental breakdown, movant's attorney failed to notify him of time that case had been set for trial or to properly present his case. Chamberlain Metal Weather-Strip Co. v. Bank of Pleasanton, 103 Kan. 845, 176 P. 978.

Ordinarily a party's right to new trial is exhausted on failure to file motion at term and within three days after verdict or decision, or on overruling a motion made, but the court may set aside an order denying new trial within the term on its own motion. Jones v. Frank, 62 Okl. 26, 161 P. 795.

25 Barnes v. Bruce, 63 Okl. 270, 165 P. 405.

26 McKee v. Howard, 38 Okl. 422, 134 P. 44.

want of jurisdiction, being appealable if erroneous, though it was made several months after new trial granted.27

§ 1522. Hearing

Where counsel are not present when a motion for new trial is regularly reached, and the court passes on the motion, a refusal of a request on the same day to argue the motion is not an abuse of discretion.28

Where the trial court refuses to hear any argument on a motion for a new trial of a case tried to a jury on conflicting oral testimony, and overrules the motion, and enters judgment on the verdict, the judgment will be reversed without inquiry into its merits.29

It is not reversible error to peremptorily overrule a motion for a new trial, where no error is shown to have occurred in the trial.30 On motion for new trial, on ground that verdict is contrary to evidence, trial court must weigh evidence and approve or disapprove verdict.81

If the ground is newly discovered evidence, the inquiry is not limited to matters known when the motion was filed, but may include any that have been developed since that time.32

In deciding a motion for new trial for newly discovered evidence, the court considers the pleadings and the evidence at the trial in connection with the newly discovered evidence offered. The court is not obliged, on request, to state findings of fact and conclusions of law separately, when ruling finally on a petition for new trial for newly discovered evidence.33

Where the court requests the applicant to point out specifically the defects complained of, and he neglects to do so, it is a waiver of any error in overruling a motion.34

27 Farmers' & Merchants' Nat Bank of El Dorado v. Wright, 157 P. 1178, 98 Kan. 248.

28 Chicago, R. I. & P. Ry. Co. v. Baroni, 122 P. 926, 32 Okl. 540.

29 Atchison, T. & S. F. R. Co. v. Consolidated Cattle Co., 52 P. 71, 59 Kan.

111.

30 Oklahoma Portland Cement Co. v. Anderson, 115 P. 767, 28 Okl. 650. The overruling of a motion for a new trial pro forma is not error sufficient

to require a reversal. Terry v. Parnell, 119 P. 629, 29 Okl. 846.

81 Chicago, R. I. & P. Ky. Co. v. Warren, 63 Okl. 190, 163 P. 705.

$2 Bousman v. City of Stafford, 81 P. 184, 71 Kan. 648; Chicago, R. I. & P. Ry. Co. v. Mosher, 92 P. 554, 76 Kan. 599.

33 Haughton v. Bilson, 133 P. 722, 90 Kan. 360. 84 Riverside Tp. v. Bailey, 82 Kan. 429, 108 P. 796.

'A'motion for new trial for misconduct of the prevailing party, on conflicting evidence is addressed to the trial court's discretion.35

Where a motion for new trial is filed, and the trial judge retires from the bench leaving it undisposed of, his successor will ordinarily grant a new trial, where the motion involves a review of the evidence, and the same has not been preserved by bill of exceptions or other record.36

A motion for new trial filed at one term may be taken under advisement and granted at the succeeding term.37

§ 1524. Conditions to granting

When a new trial is sought and awarded on the ground of error on the part of the court or jury, or misconduct on the part of the prevailing party, such new trial should be awarded absolutely, and without condition.88

Where, after verdict, a motion for a new trial was made on the statutory grounds, and the court decided generally that defendant was entitled to a new trial, a condition that he should pay attorney's fees and expenses was erroneous.

89

35 Ratcliff v. Sharrock, 44 Okl. 592, 145 P. 802.

36 Boynton v. Crockett, 69 P. 869, 12 Okl. 57; School District No. 38, Le Flore County, v. School District No. 92, Le Flore County, 140 P. 1144, 42 Okl. 228. Where a motion for new trial is made before a judge in a case heard by his predecessor, and the new judge is ignorant of the merits, a new trial should be granted. Bass v. Swingley, 22 P. 714, 42 Kan. 729; American Cent. Ins. Co. v. Neff, 23 P. 606, 43 Kan. 457.

Where one of the grounds of motion for new trial was that verdict was not sustained by the evidence and the trial judge had resigned, it was error for his successor not to grant a new trial. Linker v. Union Pac. R. Co., 123 P: 745, 87 Kan. 186.

37 Hinchey v. Starrett, 137 P. 81, 91 Kan. 181.

Where a motion for a new trial was filed within three days after verdict, but was not disposed of at that term, court did not lose jurisdiction, and might dispose of the motion at the following term. Horton v. Prague Nat. Bank, 60 Okl. 240, 159 P. 930.

38 Pierson v. Thompson, 45 P. 944, 4 Kan. App. 173.

39 Metropolitan St. Ry. Co. v. McClure, 48 P. 566, 58 Kan. 109.

(1470)

§ 1525. Reduction of verdict or remission of excess-Form of order Where the trial court is of the opinion that a verdict is excessive, it may impose upon plaintiff the alternative of accepting judgment in a reduced amount or a new trial.40

Where, in an action of tort, it clearly appears that the jury were influenced by passion or prejudice, the error cannot be cured by remitting a part of the verdict.41

An excessive verdict in a trial involving unliquidated damages is not susceptible of correction by reducing the amount thereof, but must be set aside and a new trial ordered; 2 but the trial court may either direct or receive a release of excessive damages, given by a jury as a condition of refusing a new trial, in cases where the amount of excess is exactly calculable from the evidence.

43

Where, in an action for damages, plaintiff obtains a verdict, and there is nothing to show passion or prejudice on the part of the jury, but the amount is larger than the trial court thinks allowable, plaintiff may be required to elect to take judgment for a reduced sum, suggested by the court, or to submit to a new trial."

40 Ft. Smith & W. Ry. Co. v. Hutchinson (Okl.) 175 P. 922; Bothe v. True, 103 Kan. 562, 175 P. 395; Yard v. Gibbons, 149 P. 422, 95 Kan. 802.

Where a verdict for damages is so far beyond the compensation contemplated and provided for by law as to plainly indicate that the jury was actuated by bias, prejudice, or passion, the verdict will be reduced for excessiveness. New v. McMillan, 79 Okl. 70, 191 P. 160.

41 Haldeman v. Johnson, 54 P. 507, 8 Kan. App. 473; Adcock v. Oregon R. Co., 77 P. 78, 45 Or. 173.

Where, in an action for slander, there is a verdict for $4,000, and the trial court decides that all damages above $500 are excessive, such excess shows that the verdict was rendered under the influence of passion or prejudice, and must be set aside, though plaintiff may have agreed to remit $3,500. Steinbuchel v. Wright, 23 P. 560, 43 Kan. 307.

Where counsel in addressing the jury has brought before them facts not in evidence and extraneous matters calculated to arouse prejudice and divert their minds, and the court on motion for a new trial has stated that the verdict was grossly excessive, and probably given under the influence of passion and prejudice, it is error to allow a remittitur of one-half the verdict, and enter judgment for the remainder. A new trial should be granted. Atchison, T. & S. F. R. Co. v. Dwelle, 24 P. 500, 44 Kan. 394.

A new trial will not be granted because of excessive damages if the excess can be determined and segregated from the verdict, unless plaintiff refuses to remit it. Chicago, R. I. & P. Ry. Co. v. Wehrman, 105 P. 328, 25 Okl. 147.

42 Southern Pac. Co. v. Fitchett, 80 P. 359, 9 Ariz. 128; Atchison, T. & S. F. R. Co. v. Richards, 49 P. 436, 58 Kan. 344.

43 Kansas City, M. & O. Ry. Co. v. Turley, 80 P. 605, 71 Kan. 256. 44 Union Pac. Ry. Co. v. Mitchell, 43 P. 244, 56 Kan. 324.