Hill v. Ellis , 5 Kan. App. 532 ( 1897 )

Mahan, P. J.

The court in this case, after having called a jury, and after the jury had heard the evi-. deuce and arguments of counsel and had returned special findings upon which the jfiaintiff in error was entitled to a judgment, disregarded such findings, did not require the jury to return a general verdict, but proceeded to make findings of its own and conclusions of law thereon and rendered a judgment upon such findings and conclusions of law. This was erroneous, and for this reason alone the judgment will have-to be reversed; and it would be useless, to examine the question whether the findings of the court were sustained by the evidence or not.

In an action to recover the value of personal property wrongfully taken or withheld, either party has a right to a jury. The parties may waive a jury, but the court is not obliged to accept such waiver and may of its own motion call a jury to try such cause. But the court cannot disregard the verdict and findings of a jury in such a case, and on its own motion proceed to make findings of its own and base a judgment thereon. If the verdict and findings of a jury are not supported by the evidence, or for any other reason should not be permitted to stand, it is the duty of the court to set them aside and award a new trial.

Upon an examination of the plaintiff’s evidence, we find- that there was sufficient evidence upon which to submit the case to the jury, and it was not error to overrule the defendant’s demurrer thereto. We do not deem it necessary to refer to the seventh assignment of error, based upon the admission and rejection of evidence, inasmuch as it will be necessary to award a new trial.

The judgment is reversed.