Cox v. Selover
| Decision Date | 30 October 1925 |
| Docket Number | 25,162 |
| Citation | 205 N.W. 691,165 Minn. 50 |
| Parties | A. C. COX v. GEORGE H. SELOVER |
| Court | Minnesota Supreme Court |
Plaintiff applied to the supreme court for a writ of certiorari to review an order of the district court for Hennepin county, Salmon, J., granting defendant's motion for a new trial for insufficiency of evidence to support the verdict. Denied.
Certiorari denied to review grant of new trial because verdict not sustained by evidence.
Writ of certiorari denied to review grant of new trial because of insufficiency of evidence to sustain verdict -- G.S. 1923 § 9498, subd. 4, indicates that trial court is within its discretion in setting aside first verdict when it is not supported by evidence -- Where no showing by relator of falsity of recitals in order granting new trial that motion was continued by order of court and stipulation of counsel until date of order, immaterial that motion was not heard within 30 days after verdict -- Refusal of writ does not prevent application to trial court for order vacating order granting new trial. [Reporter.]
See Certiorari, 11 C.J. p. 107, § 40; New Trial, 29 Cyc. pp. 1005, 1029.
E. E. Eder and Thomas B. Mouer, for relator.
Selover, Schultz, Mansfield & Bryan, for respondent.
Application for a writ of certiorari to review an order of the district court granting defendant's motion for a new trial for the reason that the verdict of the jury was not justified by the evidence.
Subdivision 4, § 9498, G.S. 1923, authorizes an appeal from an order granting a new trial when the order is based exclusively on errors occurring at the trial, but an appeal from an order granting a new trial for insufficiency of evidence is allowed only when a second verdict is set aside on that ground. We think it is wholly within the discretion of the trial court to set aside a first verdict on the ground that it is not supported by the evidence.
But the applicant urges that, although no appeal lies, this court, by writ of certiorari, may compel the trial court to send up the record in order that it may be determined whether the court abused its discretion in granting a new trial. If this be true, not much is left to the discretion of the trial court. If a writ of certiorari may issue in such a case as this, it would serve the same purpose as an appeal and would accomplish indirectly that which cannot be done directly.
A first verdict stands on much the same footing as a verdict and judgment under a former statute, which permitted the defeated party in an action of ejectment to have another trial if he paid the costs of the first. Section 5845, G.S. 1894. So far as we know, the validity of that statute was never questioned, no matter how overwhelming the proof in favor of the successful party.
The motion for a new trial was made on the minutes of the court. Notice of the motion was duly served within 15 days after the rendition of the verdict. Judge Salmon had presided at the trial, but was absent when the motion came up for hearing on July 8, 1925. The motion was on the calendar of causes to be heard on that day. The...
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