Kipp v. Carlson , 149 Kan. 283 ( 1939 )

The opinion of the court was delivered by

AlleN, J.:

We have carefully considered the motion for a rehearing in this case. The motion contains an elaborate reexamination and discussion of the questions presented and argued on the appeal. The motion is overruled.

However, since the trial court did not approve the general verdict, the judgment directed, in our opinion, should be modified. Judgment was rendered by the trial court for the defendant Carlson upon his motion for judgment in his favor and against the plaintiff, notwithstanding the general verdict, “for the reason that the verdict is wholly contrary to law, and that under the law this defendant is entitled to judgment.” In this we are convinced the trial court erred, for reasons stated in the opinion. Therefore, the judgment of this court will be amended to read as follows:

The judgment of the court in setting aside the verdict and entering judgment for defendant is reversed and the cause remanded with instructions to enter judgment for plaintiff on the verdict, if the court is satisfied the evidence is sufficient to sustain the verdict; otherwise the court is directed to grant a new trial under the law of the case as stated in the opinion, and on such new trial, for the reasons stated in the opinion, Carlson should be regarded as in court as a party defendant, and the question to be determined should be what amount of money, if any, is due the plaintiff by Carlson for the wheat delivered.