Cerny v. Paxton & Gallagher Company
| Decision Date | 17 December 1908 |
| Docket Number | 15,862 |
| Parties | JOHN CERNY, APPELLANT, v. PAXTON & GALLAGHER COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Affirmed.
AFFIRMED.
George W. Cooper and Louis J. Piatti, for appellant.
T. J Mahoney and J. A. C. Kennedy, contra.
CALKINS C. FAWCETT and ROOT, CC., concur.
This was an action to recover the value of a stock of goods mortgaged by plaintiff to defendant, on the ground that the mortgage was obtained by a promise that the defendant would see that the goods brought upon sale a certain price, which promise the defendant fraudulently and deceitfully made with the secret intention of not performing it. The first trial resulted in a verdict and judgment for the plaintiff, which was reversed by this court (78 Neb. 134). The opinion by ALBERT, C., contains a full statement of the facts, which it is unnecessary to repeat. The second trial upon the same issues resulted in a verdict for the defendant, and from a judgment rendered thereon the plaintiff now appeals.
1. A reference to the former opinion will disclose that, while the defendant urged numerous errors, the cause was reversed for an error of the trial judge in an instruction to the jury as to the measure of damages. The order made by this court was that the cause be remanded for further proceedings according to law. It is contended that a trial de novo was not necessary to correct said error, and that on the second trial the district court should have submitted to that jury only the question of damages, leaving the former verdict to stand in all other respects. Whatever may be the rule where a case is tried by a court which states its conclusions of law and of fact separately, or to a jury to whom is submitted special findings, the practice has been to regard the setting aside of a general verdict by a jury as necessitating a reexamination of all the questions submitted to the jury in the trial which resulted in such verdict. The statutes regulating the course of procedure do not specifically provide for setting aside a verdict in part. On the contrary, the remedy provided for errors committed during a trial, as prescribed by section 314 of the code, is a new trial. We think we may say it is the universal practice for a trial court, upon granting a new trial under said section, to examine all the issues of the case, and that such a practice as setting aside a verdict as to some part of the issues of fact, and submitting such part to another jury, is altogether unknown. When a case brought to this court is sought to be reversed for any of the errors which are specified in section 314 of the code as ground for a new trial, the making of a motion in the district court for such new trial in the time and manner required by the statute is an essential prerequisite to the right of the party appealing to have such error considered in this court. In such cases the appeal is in effect an appeal from the order refusing a new trial. Under section 594 of the code which provides that, when a judgment or final order shall be reversed either in whole or in part in the supreme court, the court reversing the same shall proceed to render such judgment as the court below should have rendered, or remand the cause to the court below for such judgment, it logically follows that, since, when a cause is reversed for any of the errors specified in section 314, the court below should have rendered a judgment awarding a new trial, it is the duty of this court to either render the judgment granting a new trial, or remand the cause to the court below for such judgment.
The plaintiff cites the cases of the Missouri, K. & T. T. Co. v. Clark, 60 Neb. 406, 83 N.W. 202, and Colby v. Foxworthy, 78 Neb. 288, 110 N.W. 857, but in neither of the cases so cited was the precise question presented, nor does this case fall within the rule there laid down. Those cases and the cases cited in the majority opinion in Missouri, K. & T. T. Co. v. Clark, supra, are authority for the rule that after reversal of a judgment for error occurring subsequent to the trial, and where the findings or verdict were not disturbed, there is no necessity for a new trial; that in such a case the court should retrace its steps to the point where the first material error occurred, and from that point the trial should progress anew. We are satisfied that where the error preceded the verdict, and the verdict is a general one, there must be a new trial upon all the issues of fact. The plaintiff cites, and quotes largely from the opinion in, the case of Lisbon v. Lyman, 49 N.H. 553; and it must be conceded that that case sustains the plaintiff's contention to the extent that this court should have upon the former hearing sent back the case for a new trial upon the one question of the measure of damages. The considerations urged by the writer of the opinion in that case would have carried great weight if addressed to a legislative body having the power to take away from the verdict of the jury its omnibus character and provide for specific findings of the different issues submitted to that body. They fail, however, to convince us that such is the law; and until the nature of the trial by jury is modified, and the character of their verdict is essentially altered, we doubt the beneficent effect of any attempt of the courts to by construction change the law so as to split the verdict of the jury into component parts, and try the several issues by different juries. We therefore must adhere to the rule that, where a general verdict is set aside for errors occurring at the trial, no part of such verdict can be left to stand, but a new trial must be awarded upon all the issues of fact.
2. The plaintiff Frank Cerny, being called as a witness, undertook to explain certain conduct with reference to attempting to borrow money to bid in the goods, which was supposed to be inconsistent with his reliance upon the promise alleged to have been made by the defendant,...
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