Lott v. Kansas City, Fort Scott & Gulf Railroad

Opinion by

Clogston, C.:

Two errors are presented — first, sustaining a demurrer to the plaintiff’s third cause of action alleged in her petition; and, second, sustaining a demurrer to the plaintiff’s evidence at the trial. Both of these questions must be decided in favor of the defendant. First, plaintiff saved no exception to the overruling of the demurrer; therefore the ruling on the demurrer to the plaintiff’s third cause of action cannot be reviewed. Before a ruling on a demurrer can be reviewed in this court, exceptions must be saved in the court below.

As to the second error assigned, the record shows that there was no motion made by the plaintiff for a new trial. Before this court can review a demurrer to the testimony, or other errors occurring at the trial, a motion for a new trial must be made. None having been made in this case, no review can be had. (Gruble v. Ryus, 23 Kas. 195; Norris v. Evans, 39 id. 668.)

It is therefore recommended that the judgment of the court below be affirmed.

By the Court: It is so ordered.

All the Justices concurring.