Bank of Willmar v. Lawler

• Decision Date: 22 November 1899
• Parties: BANK OF WILLMAR v. LAWLER (LAWLER, Intervener).
• Court: Minnesota Supreme Court

78 Minn. 135

80 N.W. 868

BANK OF WILLMAR

v.LAWLER (LAWLER, Intervener).

Supreme Court of Minnesota.

Nov. 22, 1899.

Appeal from district court, Kandiyohi county; G. E. Qvale, Judge.

Replevin by the Bank of Willmar against Jerry Lawler, in which Thomas Lawler intervened. Verdict for intervener, and from an order granting a new trial on the court's own motion he appeals. Affirmed.

Syllabus by the Court

Held, the trial court may, under proper circumstances, grant a new trial on its own motion, at least in an aggravated case of misconduct by the jury. Held, further, this is such a case, as the jury wholly failed to find on the issues between the plaintiff and the defendant, and the verdict in favor of the intervener is so manifestly and palpably against the great weight of the evidence that it would be an abuse of discretion to refuse to grant a new trial on motion made on the proper ground. John T. Byrnes, for appellant.

Samuel Porter, for respondent.

CANTY, J.

The defendant executed a chattel mortgage to plaintiff. There being a default in the conditions of the mortgage, plaintiff brought an action of replevin to recover possession of the mortgaged property, consisting of horses, cattle, sheep, wagons, and farm machinery. The answer of defendant is a general denial. At the commencement of the term of court at which the case was set for trial, Thomas Lawler, the son of defendant, intervened in the action, and in his complaint in intervention alleges that he is, and at the commencement of the action was, the owner of an undivided one-half interest in the property described in plaintiff's complaint, and denies that plaintiff is the owner or entitled to the possession of any part of such property. On the trial the jury found for the intervener, ‘that he is the owner of one-half of the property described in the sheriff's return, and entitled to the possession thereof,’ but did not find on the issues between the plaintiff and the defendant at all. After setting out this verdict, the settled case proceeds as follows: ‘Verdict of said jury received, recorded, read, and filed. The court then, upon its own motion, and during the absence of counsel for the defendant and intervener, made the following order: ‘Ordered, that the verdict of the jury be set aside and a new trial granted in said action, for the reason that no such verdict could be found or submitted under the instructions given to the jury. The instructions of the court, which is the law of the case, have been entirely disregarded. The verdict is contrary to law as well as contrary to the weight of evidence.’ And the clerk was directed to enter the order on the minutes.' From this order of the court granting a new trial, the intervener appeals.

Appellant contends that as our statute provides that the notice of motion for a new trial shall be in writing, and shall state the grounds of the motion, the court below had no authority to grant a new trial on its own motion. Under the common-law practice, it was well settled that the trial court could grant a new trial on its own motion. 2 Thomp. Trials, § 2711. Our Code of Civil Procedure does not expressly cut off this power of the court, and, in our opinion, does not do so by implication, although the Code may to some extent limit or modify that power. The power to grant a new trial is not given to the district court by statute. ‘The power of such a court to grant a new trial is not, like the right to appeal under our law, conferred by statute. It is inherent in courts of general jurisdiction,-not given, but regulated, by statute.’ McNamara v. Railway Co., 12 Minn. 388 (Gil. 269). The provisions of such a statute regulating motions for a new trial do not prevent the court, in a proper case, from granting a new trial on its own motion. Allen v. Wheeler, 54 Iowa, 628, 7 N. W. 111; 2 Thomp. Trials, § 2711. As a general rule, the trial court should not exercise this power except in aggravated cases. We are of the opinion that this is such a case. Not only did the jury fail to find on the issues between the plaintiff and the defendant, as the court instructed them to do, but the verdict in favor of the intervener is, to say the least, so manifestly and palpably against the great weight of the evidence that it would have been an abuse of discretion to deny a new trial if plaintiff had moved for one on the proper ground. The intervener took the witness stand in his own behalf, and testified that he has had a half interest in the property since 1889. He further testified: ‘Q. What time was it mortgaged? A. In 1890; December 23d, or about that time. It has been mortgaged substantially ever since about, nearly-- I have had a half interest in all of the property. * * * Q. What consideration...