Cooper v. MIDWEST FEED PRODUCTS COMPANY, 16249.

• Decision Date: 04 November 1959
• Docket Number: No. 16249.,16249.
• Citation: 271 F.2d 177
• Parties: Duane COOPER, Doing Business as Hutchinson Farm Hatchery, Appellant, v. MIDWEST FEED PRODUCTS COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

271 F.2d 177 (1959)

Duane COOPER, Doing Business as Hutchinson Farm Hatchery, Appellant, v. MIDWEST FEED PRODUCTS COMPANY, Appellee.

No. 16249.

United States Court of Appeals Eighth Circuit.

November 4, 1959.

Martin J. Purcell, Kansas City, Mo. (Clark Kuppinger and Morrison, Hecker, Buck & Cozad, Kansas City, Mo. were with him on the brief), for appellant.

Robert L. Jackson, Kansas City, Mo., for appellee.

Before GARDNER, VOGEL and VAN OOSTERHOUT, Circuit Judges.

GARDNER, Circuit Judge.

Appellant brought this action against appellee to recover damages for breach of warranty in the sale of pulverized yellow corn. It was alleged in appellant's amended complaint that there was both an express and an implied warranty, that the pulverized yellow corn was "cool and sweet" and fit for the purpose for which it was purchased, to-wit: chicken feed. The answer admitted the sale but denied the existence of an implied warranty. The case was tried to a jury and resulted in a verdict for $6,000.00 in plaintiff's favor. The court in due course, on November 25, 1958, entered judgment pursuant to the verdict. Thereafter, on December 5, 1958, defendant moved for judgment notwithstanding the verdict, or in the alternative for a new trial. On this motion defendant charged inter alia:

"That the court erroneously instructed the jury that the plaintiff was entitled to rely on an implied warranty of fitness for the particular purpose intended for the corn."

On April 1, 1959, the court denied the motion for judgment notwithstanding the verdict but granted the alternative motion for a new trial.

On this appeal plaintiff seeks reversal on substantially the following grounds: (1) That the order granting the new trial is reviewable by this court since it involves a question as to the court's jurisdiction to enter such order, and (2) that the trial court under the provisions of Rule 59(d) of the Federal Rules of Civil Procedure was without jurisdiction to grant a new trial more than four months after the entry of judgment on grounds supplied of its own initiative.

The sole question presented on this appeal is whether or not the court had jurisdiction to enter the order granting a new trial which is appealed from. Generally speaking, an order granting or denying a motion for new trial is interlocutory and not reviewable except for a clear abuse of judicial discretion. Altrichter v. Shell Oil Company, 8 Cir., 263 F.2d 377; Anderson v. Federal Cartridge Corp., 8 Cir., 156 F.2d 681. Where, however, the jurisdiction of the court to enter such order is involved, the order is reviewable. City of Manning v. German Insurance Company, 8 Cir., 107 F. 52, 54; Phillips v. Negley, 117 U.S. 665, 6 S.Ct. 901, 29 L.Ed. 1013. The applicable rule is announced by this court in City of Manning v. German Insurance Company, supra, as follows:

"An order granting a new trial in an action sets aside and renders void any former judgment therein. Rev.St. § 987 Fed.Rules Civ.Proc. rules 59, 62, 28 U.S.C.A.. An order granting or refusing a new trial, which the court has the jurisdiction or power to make, is discretionary, and cannot be reviewed by writ of error or appeal in the federal courts. * * * But the question whether or not the court had the jurisdiction or power to make an order granting or refusing a new trial and avoiding a former judgment is always reviewable in the federal courts by a writ of error or an appeal challenging the order, because it goes to the effect and finality of the judgment itself. Phillips v. Negley, 117 U.S. 665, 671, 675, 678, 6 S.Ct. 901, 29 L.Ed. 1013."

We are of the view that...