Bradley v. Slater

Decision Date03 May 1899
Docket Number9977
Citation78 N.W. 1069,58 Neb. 554
CourtNebraska Supreme Court

REHEARING of case reported in 55 Neb. 334. Affirmed.


Warren Switzler, for plaintiff in error.

Duffie & Van Dusen, contra.



At a former term the judgment of the district court was affirmed. (Bradley v. Slater, 55 Neb. 334, 75 N.W. 826.) A rehearing was afterward allowed and the cause has been again argued and submitted. Of the points discussed on the re-argument it will be necessary to consider only the authority of the court to grant Slater's motion for a new trial filed more than three days after the rendition of the judgment against him. A re-examination of this question has satisfied us that the conclusion announced in the former opinion is correct, and we adhere to it. Courts of general jurisdiction possess inherent power to vacate and modify their own judgments at any time during the term at which they were pronounced. This power exists entirely independent of any statute. It is derived from the common law, and the provisions of the Code of Civil Procedure relating to new trials do not assume to abolish or abridge it. Section 314 of the Code does not deal with the power of the court, but with the rights of the litigant. It declares that a verdict or decision shall be vacated and a new trial granted, on the application of the party aggrieved, for certain enumerated reasons. If any one of these reasons exists and the party complaining makes his application in writing within the time fixed by the statute, the court has no discretion in the matter; the motion must be sustained. But if such motion be presented out of time, it is not entitled to be considered and may be stricken from the files. To overrule it is not error. Such is the effect of the decisions cited by counsel for Bradley. (Wells v. Preston, 3 Neb. 444; Fox v. Meacham, 6 Neb. 530; Davis v. State, 31 Neb 240, 47 N.W. 851; McDonald v. McAllister, 32 Neb 514, 49 N.W. 377; Gage v. Bloomington Town Co., 37 Neb. 699, 56 N.W. 491; State v. Holmes, 38 Neb. 355 56 N.W. 979; Brown v. Ritner 41 Neb. 52, 59 N.W. 360.) These cases are not opposed to the doctrine of this case. One may ask as a matter of judicial grace what he cannot demand as a legal right. While Slater had by his laches forfeited his statutory right to move for a new trial, it was yet entirely proper for him to request a vacation of the judgment and a retrial of the cause; and the court had undoubted right, in the exercise of its discretion and in furtherance of justice, to grant such request. The form of the application...

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