Neiswender v. Board of County Commissioners

The opinion of the court was delivered by Smith, J.:

This is a motion on the part of the appellant for an order directing the trial court to proceed to grant the appellant a new trial generally in accordance with the mandate heretofore issued.

The judgment of the trial court was reversed and the trial court directed to grant defendant a new trial. (See Neiswender v. Shawnee County Comm’rs, 153 Kan. 634 , 113 P. 2d 115 .) When the opinion in this case was handed down the appellee in due time filed a motion asking this court to clarify the last paragraph of the opin *589 ion by directing the trial court to grant appellant a new trial as to the amount only. This motion was denied by this court.

The appellant makes it appear in this.proceeding that when the case was.reached for trial after the mandate had been sent down the trial court announced that it intended to' limit the issues to be tried at that time to the amount of the plaintiff’s recovery and that no trial would be had on the other issues in the case. Appellant filed this motion asking that the court be directed to proceed to grant appellant a new trial generally.

The question whether or not the new trial should be limited was presented to this court in a motion filed by appellee, to which reference has heretofore been made. After consideration we denied that. motion. No reason appears why the mandate of the court should be changed in that respect.

The trial court is, therefore, directed to proceed to grant appellant a new trial upon all the issues.

Harvey, J., not sitting.