Cox v. Cox

• Citation: 22 Idaho 692,127 P. 679
• Parties: MORRIS M. COX, Appellant, v. JOHN F. COX, Respondent
• Decision Date: 08 November 1912
• Court: United States State Supreme Court of Idaho

127 P. 679

22 Idaho 692

MORRIS M. COX, Appellant, v. JOHN F. COX, Respondent

Supreme Court of Idaho

November 8, 1912

NEW TRIAL-ORDER GRANTING OR REFUSING-SOUND DISCRETION OF COURT-CONFLICTING EVIDENCE.

(Syllabus by the court.)

1. The trial court in its order granting a new trial ought to specify the grounds upon which the new trial is granted.

2. Where there is a substantial conflict in the evidence and the trial court heard and saw the witnesses testify and observed their demeanor on the witness-stand, the action of the court in granting a new trial will not be disturbed on appeal.

3. The granting of a new trial is in the sound discretion of the trial court.

4. Held, that the court did not err in denying a nonsuit.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. John M. Flynn, Judge.

Action to recover one-half of a partnership account. Verdict and judgment for plaintiff and a new trial granted. Action of the trial court in granting a new trial affirmed.

Order granting a new trial sustained. Costs of this appeal awarded to the respondent.

McFarland & McFarland, for Appellant.

In an order granting a new trial, the trial court should specify the grounds upon which it is granted. (Wolfe v Ridley, 17 Idaho 173, 104 P. 114, 20 Ann. Cas. 39; State v. Barber, 15 Idaho 96, 96 P. 116.)

Where the record does not show the grounds on which a new trial was granted and no error warranting a new trial is apparent from the record, the order granting a new trial will be reversed. (Lowe v. Long, 5 Idaho 122, 47 P. 93.)

Whitla & Nelson, for Respondent.

Where a motion for new trial is made upon insufficiency of the evidence, under such circumstances it is within the legal discretion of the court to grant or refuse the same, and this court will not pass upon the same unless the record shows that there was clearly an abuse of this discretion. (Wolfe v. Ridley, 17 Idaho 173, 104 P. 1014, 20 Ann Cas. 39; Buckle v. McConaghy, 12 Idaho 733, 88 P 100; Jones v. Campbell, 11 Idaho 752, 84 P. 510.)

Under the rule as announced by this court, it would have been an abuse of discretion on the part of the court not to have granted the new trial. (Idaho Merc. Co. v Kalanquin, 8 Idaho 101, 66 P. 933.)

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This action was brought to recover $ 350, alleged to be one-half of a partnership claim or demand collected by the defendant. As an offset to said claim the defendant alleges and sets up a number of counterclaims and prays for judgment against the plaintiff for the sum of $ 365.30. The cause was tried by the court with a jury and a verdict was rendered and judgment entered in favor of the plaintiff for the sum of $ 216.85. A motion for a new trial was granted, and it is from that order that this appeal is taken.

The only error specified is that the court erred in sustaining defendant's motion for a new trial. The notice of intention to move for a new trial is based on seven grounds, and the court in granting the new trial does not specify upon what ground the new trial was granted. This court has frequently held that in an order granting a new trial the court should specify the grounds upon which it is granted. (See Wolfe v. Ridley, 17 Idaho 173, 104 P. 1014, 20 Ann. Cas. 39; State v. Barber, 15 Idaho 96, 96 P. 116.)

If trial courts would follow that suggestion, it would save this court much labor.

The motion for a new trial was in fact based upon two grounds: First, the insufficiency of the evidence to justify the verdict, and, second, errors of law occurring on the trial.

1. As to the insufficiency of the...