School District No. 14 v. Griner , 8 Kan. 224 ( 1871 )

The opinion of the court was delivered by

Kingman, O. J.:

i MisnomerpSion.001’ waiver. Two questions are presented in this case: First, The action is brought against “ School District No. 14, of Atchison County, Kansas.” The law makes each School District organized under the law, a body corporate by the name and style of “School District No.-,-County, State of Kansas.” The error is, leaving out the words “ State °£>” ™ name °f the corporation. The defendairt answered the petition on the merits, and a reply was duly filed. On the trial the defendant objected to the introduction of testimony by the plaintiff because of the defect above stated. The error could not be taken advantage of in this way. It must be raised in the pleadings. Formerly it could only be taken advantage of by plea in abatement. 1 Chitty Pl., 451; Gilbert v. Nantucket Bank, 5 Mass., 97; Com. v. Dedham, 16 Mass., 141; Trustees of M. E. Church v. Tryon, 1 Denio, 451; Gray v. Mongahela Nav. Co., 2 Watts & Serg., 156. The objection to evidence only goes to the point of whether the petition states facts sufficient to constitute a cause of action; not to such a defect as the one under consideration.

s. vei-aiot; conflicting testimony, Second: This is error of the court in refusing to grant a new trial because the verdict is against the evidence. The record contains all the evidence, and it has been examined with care. The facts necessary to make out the plaintiff’s right of action are abundantly sustained, and about ° . n* rrn them there is little conflict. Ihe greater number of the witnesses sustain the defense set up to defeat the action, while the plaintiff unqualifiedly testifies against the witnesses for defense; and some of the undisputed facts tend to sustain his testimony. It seems to us that it would have been proper for the court below to have granted a new trial. A re-examination of the questions in dispute, by another jury, would have been likely to promote the cause of justice. But as has been frequently decided, this court will not order a new trial because there seems a preponderance of evidence against the verdict. To weigh the evidence was the special province of the jury. If their verdict was wrong, the court below ought to have given a new tidal. That court, like the jury, saw the witnesses, heard the testimony, and was in a more favorable position to form an opinion than this court. "We cannot, when there is such a conflict in the evidence, reverse the decision of the court below in refusing to grant a new trial. The judgment is affirmed.

Brewer, J., concurring.