Buckle v. McConaghy

• Decision Date: 13 December 1906
• Citation: 88 P. 100,12 Idaho 733
• Parties: FRANK BUCKLE, Appellant, v. WM. McCONAGHY, Respondent
• Court: Idaho Supreme Court

88 P. 100

12 Idaho 733

FRANK BUCKLE, Appellant, v. WM. McCONAGHY, Respondent

Supreme Court of Idaho

December 13, 1906

APPEAL from the District Court of the First Judicial District for Kootenai County. Hon. Ralph T. Morgan, Judge.

Judgment for plaintiff. Defendant moved for a new trial and his motion was granted. Plaintiff appealed from the order granting a new trial. Affirmed.

Order granting a new trial affirmed. Costs awarded to respondent.

C. L Heitman, for Appellant.

The district judge should at least have made some inquiry or given some notice to appellant's attorney of the fact that he was considering a second motion for a new trial in the cause.

The adverse party is entitled to notice of the time and place of the hearing for a new trial, and to be present at the hearing and present his side of the case. (Peter v. Kalez, 11 Idaho 553, 83 P. 526; 37 Century Digest, "New Trial," sec. 314, and cases cited.) The motion or application must be made by the moving party, and there must be a "hearing." (Idaho Rev. Stats. sec. 4442; 1 Spelling on New Trial, sec. 378; De Gaze v. Lynch, 42 Cal 363.)

"Owing to the statutory character of the jurisdiction, there is no such thing as a pro forma ruling on the motion." (1 Spelling on New Trial, sec. 378; Ranney v. Railroad Co., 67 Vt. 594, 32 A. 810.)

Where a motion for a new trial is granted, the judge or the court should state the grounds upon which the motion is granted. (Hayne on New Trial, p. 499, sec. 167a.)

R. E McFarland and Edwin McBee, for Respondent.

"On motion for a new trial or on appeal, every intendment is in favor of the judgment or ruling of a court of record. The party complaining must show error affirmatively." (Hazard v. Cole, 1 Idaho 276.)

An order granting a new trial will not be reversed on appeal unless it is made to appear that it has been a manifest abuse of discretion in granting a new trial. (Brossard v Morgan, 6 Idaho 179, 56 P. 163; Jacksha v. Gilbert, 4 Idaho 738, 44 P. 55; Jones v. Campbell, 11 Idaho 353, 84 P. 510.)

It is not necessary, nor is the court required in granting a new trial, to incorporate in the order the grounds or reason therefor, and it is the established rule that where a new trial is granted, and the order states specifically the ground upon which it is made, and the appellate court finds that the ground or reason so stated is not sufficient, and the record discloses other grounds or reasons not stated in the order, entitling the mover to a new trial, such order will be affirmed. (Piercy v. Piercy, 149 Cal. 163, 86 P. 507; 1 Spelling on New Trial, 399.)

While the judge is compelled to submit the question of credibility to the jury because he cannot dispose of it as a matter of law, yet by submitting it to the jury he does not lose control over the verdict, nor become deprived of his rights, nor limited in his duty to set it aside upon any of the statutory grounds when such a course becomes necessary. (Jacksha v. Gilbert, 4 Idaho 738, 44 P. 555; Brossard v. Morgan, 6 Idaho 479, 56 P. 162.)

Where a case is tried by a jury, if the judge is not satisfied with the verdict and is convinced that it is clearly against the weight of evidence, it is his duty to set it aside, even though there may have been some conflict in the testimony. (Dickey v. Davis, 39 Cal. 565; McLanahan v. Universal Ins. Co., 1 Pet. 170, 7 L.Ed. 98; Stevens v. Irwin, 15 Cal. 503.)

"The rule that where there is a substantial conflict in the evidence the supreme court will not grant a new trial because the verdict is against the weight of evidence, does not apply to the court below in which the trial was had. There, if the judge is satisfied that the verdict is against the weight of evidence, he should grant a new trial, even if there is a conflict in the evidence." (Jones v. Campbell, 11 Idaho 353, 84 P. 510; Sherman v. Mitchell, 46 Cal. 577; Gerold v. Brunswick, 67 Cal. 124, 7 P. 306; Pico v. Cohn, 67 Cal. 258, 7 P. 680.)

AILSHIE, J. Stockslager, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This case has been here once before on appeal (83 P. 525) and was reversed on the grounds that a new trial had been granted prior to the settlement and allowance of the statement that was used on such motion. After the remittitur went down the trial judge took up the motion for a new trial and granted the same, and the plaintiff has again appealed from the order. As will be seen from an examination of the former opinion of this court, the respective counsel had entered into a stipulation prior to settlement of the statement whereby they each waived notice of the time and place of submission of motion for new trial and also the right to make an argument on such motion. After the case was reversed and remanded the trial court took up the motion for a new trial and considered and passed upon it without causing any further notice to be given to plaintiff's attorney. Appellant complains of this action, and insists that he should have had notice, and in support thereof cites Peter v. Kalez, 11 Idaho 553, 83 P. 526, where this court said: "The adverse party is entitled to notice of time and place of the hearing on a motion for a new trial and to be present at the hearing and present his side of the case." This latter opinion states the rule of practice as established in this state, and, but for the stipulation entered into by counsel in the case at bar, he would have been entitled to the statutory notice and an opportunity to be heard on the motion. The stipulation, however, was still in force, and so long as it remained in force and effect the trial court had a right to treat it as a waiver on the part of plaintiff's counsel of the right to notice and a hearing thereon. Had plaintiff desired to be heard on the motion when it came up the second time after the case had been reversed on appeal, he might have given notice to the adverse ...