Harnik v. Lilley

Decision Date13 April 1948
Docket NumberNo. 13671.,13671.
Citation167 F.2d 159
PartiesHARNIK v. LILLEY.
CourtU.S. Court of Appeals — Eighth Circuit

Richard W. Hobbs, of Hot Springs, Ark., for appellant.

Hebert & Dobbs, of Hot Springs, Ark. (Walter J. Hebert and P. E. Dobbs, both of Hot Springs, Ark., on the brief), for appellee.

Before GARDNER, SANBORN and JOHNSEN, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from a judgment against appellant in an action at law brought against him by appellee to recover the consideration paid by appellee on the purchase of certain personal property. The parties will be referred to as they were designated in the trial court.

It was alleged in plaintiff's complaint that he was induced to purchase certain jewelry from defendant by defendant's false and fraudulent representations which were relied upon by plaintiff. It was also alleged that plaintiff had returned, or offered to return, the property. The case was submitted to the jury on instructions to which no complaint is here made by defendant. The jury returned a verdict for $11,617.70, the amount of the consideration, and from the judgment entered on the verdict so returned this appeal is prosecuted.

Defendant's brief contains no statements of the points relied upon for reversal. Under the heading "Points and Authorities," appear the following:

"(A) A jury may not arbitrarily disregard the testimony of unimpeached witnesses.

"(B) A verdict will be set aside where it appears that it could not have been found by a jury without either disregarding the instruction of the court in regard of law or giving an effect to evidence which, in a just and legal sense, was not proper.

"(C) Where a jury returns a verdict against the plain principles of law, as laid down by the court, and against clear and unquestioned evidence, the court will grant a new trial notwithstanding the particular circumstances or general justice of the case."

An examination of the record discloses the fact that defendant did not at the close of the testimony move for a directed verdict in his favor. He does not on this appeal challenge the correctness of any of the instructions nor does he urge any errors in the ruling of the trial court on the admissibility of evidence. It is a little difficult to determine what questions defendant has attempted to present for our consideration. No specific act or ruling of the court is complained of, unless, possibly, it be the ruling of the court in denying his motion for new trial. Rule 11(b) Fourth of this court provides that appellant's brief shall contain, "A separate and particular statement of each assignment of error (in criminal cases), or of each point relied upon (in civil cases), intended to be urged, with the record page thereof." The only question which defendant has attempted to raise is the sufficiency of the evidence to sustain the verdict of the jury.

This is an appellate court and we are without authority on appeal to set aside a general verdict because against the weight of the evidence. The only review that can be had as to the finding of fact by a jury is whether there is any substantial evidence to support it, this being a pure question of law. When, however, there is no request for a directed verdict, the question as to the sufficiency of the evidence to sustain the verdict or judgment is not reviewable. Amendment VII of the Federal Constitution provides, among other things, that, "The right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

The only mode known to the common law to re-examine facts tried by a jury was the granting of a new trial by the court where the issue was tried. This being a law action, we have appellate jurisdiction only, and the only way of securing a review of the facts is by interposing a motion for a directed verdict at the close of all the evidence and securing a ruling thereon. This presents a question of law. Dinet v. Rapid City, 8 Cir., 222 F. 497; Minnehaha County v. Kelley, 8 Cir., 150 F.2d 356; Mutual Benefit Health & Accident Ass'n v. Bowman, 8 Cir., 99 F.2d 856; Emanuel v. Kansas City Title & Trust Co., 8 Cir., 127 F.2d 175; Home Ins. Co. v. Tydal Co., 5 Cir., 157 F.2d 851. In Dinet v. Rapid City, supra, this court, speaking through Judge Carland, said 222 F. 499:

"It is claimed there is...

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12 cases
  • Price v. Sinnott, 5728
    • United States
    • Nevada Supreme Court
    • November 4, 1969
    ...(1963); Tsai v. Rosenthal, 297 F.2d 614 (8 Cir. 1961); Massaro v. United States Lines Company, 307 F.2d 299 (3 Cir. 1962); Harnik v. Lilley, 167 F.2d 159 (8 Cir. 1948). A party may not gamble on the jury's verdict and then later, when displeased with the verdict, challenge the sufficiency o......
  • Een v. Consolidated Freightways
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 11, 1955
    ...Mutual Ben. Health & Accident Ass'n v. Thomas, 8 Cir., 123 F.2d 353; Minnehaha County, S. D. v. Kelley, 8 Cir., 150 F.2d 356; Harnik v. Lilley, 8 Cir., 167 F.2d 159. This rule has been oft repeated by this court. Thus, as early as 1915, in an opinion by Judge Carland speaking for this court......
  • Black, Sivalls & Bryson v. Shondell
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • May 24, 1949
    ...such motion and ruling the question of the sufficiency of the evidence to sustain the verdict and judgment is not reviewable. Harnik v. Lilley, 8 Cir., 167 F.2d 159. We therefore decline to review the evidence in this case or to determine whether it was sufficient to support the allegations......
  • Myra Foundation v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 17, 1959
    ...affirmative action. Hoblik v. United States, 8 Cir., 151 F.2d 971; Minnehaha County, S. D. v. Kelley, 8 Cir., 150 F.2d 356; Harnik v. Lilley, 8 Cir., 167 F.2d 159. In the instant case the complaint goes to the amount of the verdict. We have consistently held that the remedy for excessive or......
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