OPINION ON REHEARING.
The opinion of the court was delivered by
Greene, J.„:The original opinion in this case was handed down October 5, 1901.' A rehearing was granted, principally on the ground that there appeared to be something of a conflict in the former decisions of this court upon the proper construction of section 308 of the civil code (Gen. Stat. 1901, §4756), relating to the time when the application for a new trial could be filed. It was thought to be a matter of so much importance to the profession as to make it worthy of positive and final settlement.
The question is, May the failure to file a motion for a new trial within the term at which the verdict, report or decision is rendered be excused by showing that the delay was unavoidable? The case of Mercer v. Ringer, 40 Kan. 189, 19 Pac. 670, is cited as showing that it cannot, while the case of Fudge v. St. L. & S. *606F. Rly. Co., 31 id. 146, 1 Pac. 141, is cited to sustain the opposite contention. "We do not think the case of Mercer v.Ringer, supra, in point. It makes no reference to Fudge v. St. L. & S. F. Rly. Co., supra, and does not pretend to criticize or overrule it. This last case clearly holds that a failure to file the motion within the term can be excused by unavoidable casualty, as well as a failure to file it within three days. It would seem to be right that it should be so. That construction, being a fair one from the language of the section, must be indulged in to accomplish the right result.
It is urged, however, that the right to grant a new trial must affirmatively appear, such, right being in a sense jurisdictional, and that this court cannot say that this exceptional power to grant a new trial existed unless the facts on which it depended affirmatively appear in the record. Admitting that certain facts must appear to the trial court in order to give it jurisdiction to grant a new trial, the statute nowhere requires that such facts must be made to appear by a writing or be brought into the record. The judge passing upon such a motion may know, of his own knowledge, that the party applying was unavoidably prevented from filing his motion within the term. In this case the court adjourned for the term the same day the decision was rendered, and, from aught that is shown, it may have been at once and under circumstances known to the court which rendered it impossible to file the motion before such adjournment. From this knowledge the court may have had abundant reason for granting such new trial, and, as said in the original opinion, we are obliged to indulge in all reasonable and lawful presumptions, that we may uphold the action of the court below. The court was *607not required to put into the record the reasons for its action.
All of the other contentions of plaintiff in error received due consideration when the case was heard before, and we do not feel called upon again to refer to them.
The former judgment of this court and the judgment of the court below will be affirmed.
Smith, Cunningham, JJ., concurring.