Artman v. West Point Mfg. Co.

• Decision Date: 14 October 1884
• Citation: 20 N.W. 873,16 Neb. 572
• Parties: W. R. ARTMAN, PLAINTIFF IN ERROR, v. THE WEST POINT MANUFACTURING COMPANY, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

20 N.W. 873

16 Neb. 572

W. R. ARTMAN, PLAINTIFF IN ERROR, v. THE WEST POINT MANUFACTURING COMPANY, DEFENDANT IN ERROR

Supreme Court of Nebraska

October 14, 1884

ERROR to the district court for Cuming county. Heard below before BARNES, J.

Petition dismissed.

T. M Franse, for plaintiff in error.

M McLaughlin, for defendant in error.

OPINION

REESE, J.

The plaintiff in error brought his action in the district court of Cuming county, in which he demanded judgment against the defendant in error for the sum of $ 3,028.69, with interest etc. The issues were joined and the cause was tried to a jury who returned a verdict in favor of plaintiff for the sum of $ 1,855.32. The defendant then filed a motion for a new trial, alleging as grounds therefor that the damages awarded by the jury were excessive; that the verdict was contrary to law; that the verdict was contrary to the instructions of the court; that it was against the weight of evidence, and that there was not sufficient evidence to sustain the verdict.

The motion was sustained and a new trial granted. From the decision of the court in granting a new trial, the plaintiff brings the case into this court on error for review. No new trial has been had, and for aught that appears from the record, the cause is still pending in the district court awaiting trial. Such, we presume, is the fact.

Section 582 of the civil code provides that a "judgment or final order made by the district court may be reversed, vacated, or modified by the supreme court for errors appearing on the record."

Section 581 is as follows: "An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order which may be vacated, modified, or reversed as provided in this title."

The question which presents itself is, was the decision of the district court in setting aside the verdict of the jury and granting a new trial, a "judgment or final order?" This question is jurisdictional. If it was not, this court has no jurisdiction or authority to interfere with the order even if improperly or erroneously made. This question has never been passed upon by this court, and the cases of Kruger v. Harvester Co., 9 Neb. 526, 4 N.W. 252, and Murray v. School District, 11 Neb. 436, 4 N.W. 316, do not sustain the proposition contended for by plaintiff in error. Both of those decisions involve a construction of sec. 602 of the civil code, which provides for reversing, vacating, etc., judgments rendered at a previous term of such court.

By the terms of the statutes above quoted the order sought to be reviewed must not only be an order affecting a substantial right, but it must be one which "in effect terminates the action and prevents a judgment." The order in question does not do this. By this statute there are two classes of orders which may be reviewed by this court. One is where the order affects a substantial right in an action, and in effect determines the action, and the other is an order affecting a substantial right in a special proceeding, or...