Smith v. Benton

The opinion of the court was delivered by

Johnston, J.:

This was an action brought by J. T. Smith to recover the possession of real estate, alleged to have been unlawfully detained by J. O. Benton, in which the defendant prevailed. At the trial, objections were made to testimony offered by plaintiff, and some of the same was excluded. When the plaintiff rested, a demurrer to his evidence was sustained by the court, and judgment against him was rendered. He presented a motion for a new trial, setting forth several grounds why it should be allowed, and, according to the record, the court, without evidence, argument, or considertion, denied the new trial. The statement in the record is, that it was overruled pro forma.

It is well settled — the rule having been so often announced that it must be familiar to the profession — that the failure of the court to consider the grounds of the motion is an error which compels a reversal. (The State v. Bridges, 29 Kas. 138; M. A & B. Rld. Co. v. Keeler, 32 id. 163; The State v Summers, 44 id. 637; K. C. W. & N. W. Rld. Co. v. Ryan, 49 id. 12; Larabee v. Hall; 50 id. 311.)

The judgment of the district court will be reversed, and the cause remanded for another trial.

All the Justices concurring.