
    No. 12,168.
    
       G. W. Mayberry, Appellee, v. The Missouri Pacific Railway Company, Appellant.
    
    HEADNOTE BY THE REPORTER.
    
      Jurisdiction — Granting New Trial at Subsequent Term. A district court, after a term of court has passed, at which it rendered judgment and overruled a motion for a new trial, has no power to set aside the order and grant a rehearing of the motion for a new trial.
    Appeal from Sedgwick district court; David M. Dale, judge.
    Opinion filed May 11, 1901.
    Division two.
    Affirmed.
    
      J. H. Richards, C. E. Benton, both of Fort Scott, and D. Smyth, of Wichita, for the appellant.
    
      H. M. DuBois, and O. A. Reach, both of Wichita, for the appellee.
    
      
       Note. — This case was not reported in full when the .opinion was filed (see 63 Kan. 881), and is reported here because it was cited in the case of Bank v. Wright, ante, p. 248.
    
   Per Curiam:

This action was.tried in the district court of Sedgwick county on May 15, ■ 1896, at the May term. Both parties waived a jury. The defendant appeared by J. H. Richards, one of its attorneys, and after the evidence was introduced it requested that said cause be continued until the 25th day of June, 1896, for argument. This was consented to by the court, on condition that counsel for both parties would at the same time, and in the same argument, argue their motion for a new trial, and that, whichever way the court decided, the defeated party should immediately file his motion for a new trial, and it would be overruled without further argument. On this condition the cause was continued until the 25th of June. On that date Mr. Smyth, one of the attorneys for the defendant, announced to the court that the defendant did not wish to make an argument; the court then said to him that he would render .judgment for the plaintiff, and that the defendant should file its motion for new trial and that it would be overruled. Judgment was then rendered for the plaintiff. At the May term, and on the 27th day of June, the defendant filed its motion for a new trial, which was overruled. A journal entry was prepared, containing the proceedings had, giving the defendant 120 days to make a case for the court of appeals. This journal entry was put upon the records of the court. On December 15, at the September, 1896, term of court, the defendant filed its motion asking the court to set aside its order of June 27, overruling its motion for a new trial. Upon the hearing of this motion some evidence was introduced tending to show that the defendant did not know that the journal entry of judgment had been filed, nor that .the motion' for a new trial had been overruled, until after the 120 days given it to prepare a case had expired. Upon the hearing the court made the following statement:

“I want to state right here, in connection with this, before you commence the argument, that when this case in controversy came up for trial, Mr. Richards, who represented the defendant, prior to the commencement of the trial, informéd the court that he would like to make an argument upon the matter and requested that after the evidence had been introduced that the court would postpone the matter until he could do that; that he would want to get some authorities and would like to make a very extended argument. The court informed Mr. Richards, at that time, that that would be agreeable to the court with the understanding upon the part of the counsel in the case that if time were given as requested that after the court had decided the matter, whichever way the court decided it, the party losing the case would file a motion for a new trial, and then no time would be taken upon that, but overrule it without further argument, and as I wanted one argument to answer both purposes. That was agreed to by the counsel. .Sometime after that Mr. Smyth, in the court room, informed the court that Mr. Richards did not care to make an argument, and I said to him then, all right, if he does n’t care to I will give judgment for the plaintiff in the case; and I directed Mr. Symth to file a motion for a new trial and informed him that the same would be overruled: that when the journal entry was presented to the court in regard to overruling the motion for a new trial, 120 days was allowed the defendant to make and serve a case-made.”

The court thereupon set aside the order of June 27, overruling the motion for new trial by the defendant, and the motion was reargued, and overruled by the court. The defendant brings the case here alleging error.

The record indicates that the only reason the court had for setting aside the order of June 27, overruling the motion for a new trial, was that the defendant might have an opportunity to prosecute an appeal. This is not sufficient. Each party has a right to have the proceedings of court,' regularly had and entered, remain, unless set aside for some reason known to the law. We have been unable to find any reason justifying the court in setting aside the order overruling the motion for a new trial.

Mr. Smyth, one of the attorneys for the defendant, was in court, and was informed by the court that judgment would be rendered for the plaintiff, and that he should file a motion for ' a new trial, which would be overruled, under the argument had on .May 15. The district court, after a term of court has passed at which it rendered judgment and overruled a motion for a new trial, has no power to set aside the order and grant a rehearing of the motion for a new trial. (Kauter v. Fritz, 5 Kan. App. 756, 47 Pac. 187; Kingman v. Chubb, 8 Kan. App. 167, 55 Pac. 474; Lookabaugh v. Cooper, 5 Okla. 102, 48 Pac. 99.

The order of the court setting aside its order overruling the motion for a new trial was without jurisdiction and void.

The cause will be affirmed.  