W. P. Knote, Appellee, v. J. T. De Shirley, Appellant, 84 Kan. 738

The opinion of the court was delivered by Porter, J.: This is an action in replevin. The jury returned a verdict in favor of the appellant, who was the defendant. The court granted a new trial on the sole ground that the verdict was not sustained by sufficient evidence. This is the only error complained of. The motion for a new trial was filed under the provisions of the old code. At the time the motion was heard the amended code was in effect.

The appellant makes the novel claim that the new code has taken away from the trial court the power to grant a new trial, on the ground that the verdict of the jury is not sustained by sufficient evidence. This was one of the grounds stated in the provisions of the old code. (Former Code, § 306, Gen. Stat. 1901, § 4754.) The language of the new code (Code 1909, § 305) is: “Fourth, that the verdict, report or decision is in whole or in

part contrary to the evidence.” We are unable to discover any distinction between the two forms of expression. If a verdict is contrary to the evidence, it is not sustained by sufficient evidence. Both forms of expression mean when the weight of the evidence as a whole is not sufficient to justify the verdict. The judgment granting a new trial is affirmed.