
    J. D. Larabee v. L. A. Hall.
    New Tbiai,—Overruling Motion, Pro Forma. It is greivous error for the trial court to overrnle a motion for a new trial pro forma. The case of The State v. Summers, 44 Kas. 637, cited and followed.
    
      Error from Stafford District Court.
    
    The opinion states the case.
    
      J. W. Rose, and F. M.powgill, for plaintiff in error:
    The court should have considered the motion for a new trial, and approved the verdict, or set it aside if erroneous, and its refusing to do so was error. M. A. & B. Rid. Co. v. Keeler, 32 Kas. 163.
    
      Haheston & Hillis, for defendant in error:
    The plaintiff in error, having obtained a verdict and judgment in the court below, cannot enjoy the fruits of that judgment and verdict, allow his motion to be overruled pro forma without objection to such ruling, and then have his case reviewed by the supreme court. If this court, however, should entertain a different view, then, where a trial court in the decision of any question renders judgment or makes an order merely pro forma, the supreme court in reviewing the same will order the judgment to be rendered or the order to be made which should have been rendered or made in the first instance. This court, therefore, will examine this case and determine it upon the same basis as it should have been examined and determined by the trial court.
   Opinion by

Simpson, C.:

This was an action in replevin to recover possession of certain personal property by a chattel mortgagee. The plaintiff below, being dissatisfied with the verdict of the jury and the judgment, brings the case here for review. A motion to dismiss the petition in error and ease made has been filed, because the record does not contain all of the evidence offered at the trial. In view of another question, we do not deem the disposition of this motion necessary. The record affirmatively shows that the motion for a new trial was overruled pro forma. This is grievous error, as will be seen from the cases of Nesbit v. Hines, 17 Kas. 316; City of Atchison v. Byrnes, 22 id. 65; Clark v. Imbrie, 25 id. 424; The State v. Bridges, 29 id. 138; M. A. & B. Rld. Co. v. Keeler, 32 id. 163; Insurance Co. v. Neff, 43 id. 457; The State v. Summers, 44 id. 637.

For the error of the court in overruling the motion for a new trial pro forma, we recommend that the judgment be reversed, and a new trial granted.

By the Court: It is so ordered.

All the Justices concurring.  