Ayer v. Chicago, Milwaukee, St. Paul & Pacific Railroad Company
| Decision Date | 30 June 1933 |
| Docket Number | 29,444 |
| Citation | 249 N.W. 581,189 Minn. 359 |
| Parties | BELA DELL AYER v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY AND ANOTHER |
| Court | Minnesota Supreme Court |
Defendant Irvin J. Beckel appealed from an order of the district court for Mower county, Norman E. Peterson, Judge vacating a judgment in his favor and granting plaintiff a new trial. Reversed.
See 187 Minn. 169, 224 N.W. 681, and 189 Minn. 90, 248 N.W. 749.
Appeal and error -- nonappealable order.
1. (a) An order granting a new trial is generally not appealable.
Appeal and error -- appealable order.
(b) An order vacating a judgment is appealable.
New trial -- order granting new trial after judgment -- effect.
(c) An order granting a new trial after judgment vacates the verdict and judgment.
New trial -- time for hearing and granting motion after judgment.
(d) The trial court has power to hear and grant a motion for a new trial after judgment within the item for appeal therefrom, under the limitations stated in Kimball v. Palmerlee, 29 Minn. 302, 13 N.W. 129.
Appeal and error -- appealable order.
2. Under these rules, an order granting a new trial after judgment has been entered is appealable as an order vacating the judgment.
New trial -- application for new trial after judgment -- laches.
3. The record shows such delay and laches that it was an abuse of discretion to hear and grant a motion for a new trial after judgment.
Judgment -- vacating.
4. On the record presented, no good grounds for vacating the judgment in question are shown where the order granting a new trial was error.
Judgment -- vacating.
5. A verdict and judgment sustained by the great preponderance of the evidence cannot be vacated on the ground that substantial justice has not been done.
Appeal and error -- review -- sufficiency of evidence to sustain verdict.
6. Such a verdict is not perverse.
F. W. Root, C. O. Newcomb, A. C. Erdall, and Catherwood, Hughes & Alderson, for appellant.
Sasse, French & Dunnette, for respondent.
The defendant Irvin J. Beckel appeals from an order setting aside a verdict and judgment in his favor and granting a new trial as to him.
The action is one against the Chicago, Milwaukee, St. Paul & Pacific Railroad Company and Irvin J. Beckel to recover damages for personal injury to plaintiff, claimed to have been caused by negligence on the part of the defendants. The case was tried in the district court and a verdict returned in favor of the plaintiff and against the railroad company on January 9, 1932. No verdict was rendered against defendant Beckel, and, under the instructions given to the jury by the court in submitting the case, the effect of the verdict was a verdict in favor of Beckel finding him not guilty of any negligence. On appeal to this court by the railroad company it was held that the only negligence shown was that of Beckel, the employe of the railroad company, and that a verdict finding him free from negligence but finding the master, for whom he acted, guilty of negligence was perverse as to the company, and the order of the trial court denying the railroad company's motion for a new trial was reversed. Ayer v. C.M. St. P. & P.R. Co. 187 Minn. 169, 244 N.W. 681. The decision here was filed October 14, 1932. Judgment in favor of Beckel had been entered in the district court on September 23. On October 17, on application of plaintiff, the trial court made an ex parte order granting plaintiff the right to move for a new trial as against defendant Beckel. On October 22 plaintiff served notice of a motion to have the judgment in favor of Beckel vacated and for a new trial as to him. On October 26 notice of an amended motion for the same relief was served. The amended motion was heard by the trial court on December 3, and the order granting it was made December 17. This appeal is from that order.
1. Under our decisions, an order granting a new trial is generally not appealable. Spicer v. Stebbins, 184 Minn. 77, 237 N.W. 844; Backstrom v. New York L. Ins. Co. 187 Minn. 35, 244 N.W. 64. But an order vacating a judgment is appealable. Morehart v. Furley, 152 Minn. 388, 188 N.W. 1001. An order granting a new trial after judgment has been entered vacates the verdict and judgment, and that result follows even though the motion for a new trial did not ask for a vacation of the judgment. Noonan v. Spear, 125 Minn. 475, 147 N.W. 654; Smith v. Minneapolis St. Ry. Co. 134 Minn. 292, 157 N.W. 499, 159 N.W. 623; and see opinion filed herein May 12, 1933 (Ayer v. C.M. St. P. & P.R. Co. 189 Minn. 90, 248 N.W. 749), denying motion to dismiss the appeal. The trial court has the power to hear and grant a motion for a new trial after judgment has been entered, within the time for appeal therefrom, under the limitations hereinafter considered. Cochrane v. Halsey, 25 Minn. 52; Kimball v. Palmerlee, 29 Minn. 302, 13 N.W. 129; Collins v. Bowen, 45 Minn. 186, 47 N.W. 719; Noonan v. Spear, 125 Minn. 475, 147 N.W. 654; Smith v. Minneapolis St. Ry. Co. 134 Minn. 292, 157 N.W. 499, 159 N.W. 623; Wilcox v. Hedwall, 186 Minn. 504, 243 N.W. 709.
2. It appears logically to follow from these rules that where a motion for a new trial is made and granted after entry of judgment, the order is appealable as an order vacating the judgment. Otherwise the party aggrieved would lose his right to appeal from an order vacating his judgment, and would have to suffer the delay and incur the expense incident to a new trial before he could appeal. The loss of his judgment, in the meantime, might be a serious detriment.
3. Coming then to the question of whether the trial court abused its discretion in granting the motion for a new trial: The limitations upon the power of the trial court to grant a new trial, after judgment, are clearly stated in the opinion by Chief Justice Gilfillan in Kimball v. Palmerlee, 29 Minn. 302, 303, 13 N.W. 129, 130:
"First, that the motion ought to, and, if the party has a reasonable opportunity, must be made and brought to a decision before judgment; second, but as the statute gives the absolute right to make the motion, the party may make it after judgment and within the time for bringing an appeal from the judgment, if, without fault or laches on his part, he has no reasonable opportunity to make it and bring it to a determination before judgment; third, if he have no reasonable opportunity to move before judgment, he must, on whatever ground he makes the motion, use reasonable diligence in doing so afterwards, and he will lose his right by neglect of such reasonable diligence; the determination of the question of reasonable diligence will necessarily be in the sound discretion of the trial court; fourth, that the rule is the same, whether the cause was tried by a judge, referee, or jury."
Here the verdict was rendered on January 9 and the judgment entered September 23 of the same year. Plaintiff had ample opportunity during the intervening eight and a half months to have a case settled and to move for a new trial. The trial court made an order, without notice, on October 17, purporting to excuse plaintiff's delay. This order was granted on a petition by plaintiff's counsel, setting forth that this court, by its decision on the appeal of the railroad company filed October 14, 1932, 187 Minn. 169, 244 N.W. 681, had set aside the verdict against that company; that the trial court had held,...
To continue reading
Request your trial