Applewhite v. Wayne

• Decision Date: 02 May 1929
• Docket Number: 21634.
• Citation: Applewhite v. Wayne, 152 Wash. 62, 277 P. 84 (Wash. 1929)
• Parties: APPLEWHITE v. WAYNE.
• Court: Washington Supreme Court

277 P. 84

152 Wash. 62

APPLEWHITE v. WAYNE.

No. 21634.

Supreme Court of Washington

May 2, 1929

Department 1.

Appeal from Superior Court, Pacific County; H. W. B. Hewen, Judge.

Action by Sid Applewhite against Jeanette Wayne. From an order granting defendant's motion for a new trial after the jury returned a verdict for plaintiff, plaintiff appeals. Affirmed.

John I O'Phelan, of Raymond, for appellant.

Welsh &amp Welsh, of South Bend, for respondent.

FULLERTON J.

The appellant, Applewhite, as plaintiff, brought this action against the defendant, Wayne, to recover for money loaned consisting of a number of items. There was a denial as to certain of the items and a plea of payment as to the remainder. On a trial by jury, a verdict was returned in favor of the plaintiff for something less than his demand. The defendant moved for a new trial, basing her motion upon a number of the statutory grounds. These included irregularities in the proceedings which prevented the defendant from having a fair trial, misconduct on the part of the prevailing party and the jury insufficiency of the evidence to justify the verdict, and errors of law occurring at the trial and excepted to at the time. On a hearing upon the motion the court entered an order granting it, the operative part of the order reading as follows: 'It is hereby considered and ordered that the said motion for a new trial be and the same is hereby granted.' It is from this order that the present appeal is prosecuted.

The appellant contends in this court that the motion was granted because of supposed errors in the instructions given to the jury by the trial court, and argues that the instructions were not erroneous. But if this be the ground upon which the new trial was granted, the record does not present the question in such a manner as to enable us to review it. The motion, it will be noted, is based upon a number of grounds some of which present legal questions which can be reviewed as such, and which would warrant a reversal if prejudicial error be found. Others again present questions on which the trial court may exercise a discretion, and which will warrant a reversal on review only when it is found that the discretion has been abused. It will be noted further that the order granting the new trial is general; that is, it does not appear therefrom on which one or more of the several grounds set out in the motion the order is rested. The rule is that where a motion for a new trial is based on several grounds, and the order does not disclose the ground on which it is rested, the order will not be disturbed on review if it can be...