Fisk v. Henarie

• Court: Supreme Court of Oregon
• Citation: 13 P. 760,15 Or. 89
• Parties: FISK v. HENARIE and others.
• Decision Date: 19 April 1887

13 P. 760

15 Or. 89

FISK v. HENARIE and others.

Supreme Court of Oregon

April 19, 1887

Appeal from Multnomah county.

STRAHAN, J.

This is an appeal from an order of the circuit court of Multnomah county, granting a new trial, and also from the order of said court overruling appellant's motion for judgment on the verdict. It is the third appeal in this cause. The ruling of this court on the first appeal is reported in 13 Or. 156, 9 P. 322; on the second appeal, in 13 P. 193,--to which reference is made for a fuller statement of the facts. On the present appeal two questions have been argued, and are presented for our consideration: (1) Whether or not an appeal will lie to this court from an order of the lower court granting a new trial; and (2) whether the defendants' motion for a new trial was pending before said court at the time the same was allowed. These questions I will now consider in the order stated. The right to an appeal depends entirely upon the statute. If the statute does not confer it it does not exist. In re Goldsmith, 12 Or. 414, 7 P 97, and 9 P. 565; Kearney v. Snodgrass, 12 Or. 311 7 P. 309; Town of La Fayette v. Clark, 9 Or. 225.

The appellant relies upon section 525 of the Civil Code, which is as follows: "A judgment or decree may be reviewed as prescribed in this title, and not otherwise. An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein, or a final order affecting a substantial right, and made in a proceeding after judgment or decree for the purpose of being reviewed, shall be deemed a judgment or decree." It is claimed on the part of the appellant that the order of the court granting a new trial, and setting aside the verdict, is "an order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein." It was held by this court in Kearney v. Snodgrass, 12 Or. 311, 7 P. 311, that an order granting a new trial does not "affect a substantial right;" nor do I think it is one which in effect determines the action or suit so as to prevent a judgment or decree therein. The action is still pending and undetermined in the court below. The plaintiff, if he saw proper, might bring the same on for trial there, and recover such sum as might be awarded him upon the trial. This statement of the case seems sufficient to show that the order in question has not determined the action so as to prevent a judgment therein. This construction is in accordance with that given a similar statute in Artman v. West Point Manuf'g Co., 16 Neb. 572, 20 N.W. 873. The court there said: "By the terms of the statutes above quoted, the order sought to be reviewed must not only be an order affecting a substantial right, but it must be one which, in effect, terminates the action and prevents a judgment. The order in question does not do this. By this statute there are two classes of orders which may be reviewed by this court. One is where the order affects a substantial right in an action, and, in effect determines the action; and the other is an order affecting a substantial right in a special proceeding. *** It is quite clear that an order granting a new trial during the term in which the verdict of a jury is returned cannot be said to belong to the second class of orders mentioned in the section above quoted, and it is equally obvious that it must be classed with the first. If that be true, we fail to see how it can be treated as a final order, or one which determines the action. A final order is one which disposes of the cause, either by sending it out of court before a hearing is had on the merits, or after a hearing on the merits, either granting or refusing the relief demanded by the plaintiff. Freem.Judgm. §§ 29, 30, 36." So, in Conord v. Runnels, 23 Ohio St. 601, the principle is thus stated: "A motion for a new trial is addressed to the sound discretion of the court, and, although it is well-settled law that error will lie in a proper case where a new trial has been refused, we know of no case in which it has been held to lie when a new trial has been allowed and had, and where the court had power to grant a new trial, and its order granting such new trial is not made ground of error by statutory provision." So, in a case where a motion for a new trial is made after judgment, a party cannot appeal from such judgment while the motion is still pending and undetermined. In such case the judgment is not final. Kinney v. South & North Alabama R. Co., 73 Ala. 536. So also in State v. Perry, 4 Baxt. 438, under a statute which expressly authorized the supreme court to grant new trials, or to correct any error of the circuit court in granting or refusing the same, it was held that this power could only be exercised on an appeal from a final judgment in the cause. And the same construction was adhered to in King v. Miller, 8 Baxt. 382. In this case the court say: "*** The statute does not mean to give appeals from the action of the court simply granting a new trial, nor to change the long-established rule that appeals to this court can only be had from final judgments. This being an attempt to so appeal, the case is not before us, and we can take no jurisdiction of it." And in Kansas an order of a district court setting aside a judgment is not an appealable order. Such an order leaves the cause still pending in the lower court, and is not final. McCulloch v. Dodge, 8 Kan. 476; Kermeyer v. Kansas P. R. Co., 18 Kan. 215. So, also, in Florida an order of the trial court granting a new trial is not appealable, though the action of the court in granting or refusing a new trial may be reviewed upon an appeal from the final judgment. Staples v. Hartridge, 8 Fla. 426; Dawkins v. Carroll, 5 Fla. 407. The same principle is, in effect, announced by this court in Kearney v. Snodgrass, supra. And these principles seem to be elementary.

In Freeman on Judgments, § 34, it is said: "The general rule recognized by the courts of the United States, and by the courts of most, if not all, of the states, is that no judgment or decree will be regarded as final, within the meaning of the statutes in reference to appeals, unless all the issues of law and fact necessary to be determined were determined, and the case completely disposed of, so far as the court had power to dispose of it." The respondents submitted a motion to dismiss the appeal in this case, which was argued and submitted by direction of the court in connection with the other questions presented for our consideration. I think, therefore, that the motion to dismiss the appeal ought to be sustained. But this would leave undetermined the main question involved and presented on the appeal, and that is whether or not, as a matter of law, the defendants' motion for a new trial was pending in the court below on the eighteenth day of December, 1886. It is conceded that, if said motion was then pending before that court, whatever ruling the court made thereon is not reviewable on this appeal for the reason it was a matter resting in the sound discretion of the trial court. I therefore think proper to indicate the conclusions I have reached on that subject.

A brief reference to the facts is necessary to a proper understanding of this question. The verdict was rendered on the twenty-first day of May, 1886. The defendants' motion to set it aside and grant a new trial was duly filed on the twenty-second day of May, 1886. On the same day the defendants also filed a motion for judgment non obstante veredicto. On the first day of June, 1886, the plaintiff filed a motion for judgment on the verdict. On the twenty-sixth day of May, 1886, it appears from the record that, upon the agreement of counsel for the plaintiff and defendants, respectively, made in open court, it was ordered that the motions for a new trial, and for judgment for defendants notwithstanding a verdict, and the plaintiff's motion for judgment on the verdict, be and they were set for hearing on Tuesday, the first day of June, 1886, at 9 o'clock A.M., and, if the court shall not then be in session, shall be heard on Wednesday, the second day June 1886, at the same hour. It further appears that on the second day of June, 1886, said cause came on for hearing upon motion for a new trial, motion for judgment on the verdict, and motion for judgment notwithstanding the verdict; and after hearing said motions, and the arguments of counsel thereon, the court, not being fully advised in the premises, took the same under advisement. On the thirtieth day of June, 1886, the court made an order allowing the defendants' motion for judgment notwithstanding the verdict, and thereupon entered a final judgment in favor of the defendants for their costs and disbursements, taxed at $292.98. The record is entirely silent as to what disposition was made of the plaintiff's motion for judgment on the verdict, and the defendants' motion for a new trial. From this judgment the plaintiff appealed to this court, and, at the last term thereof, the same was reversed, and the cause remanded for further proceedings in the court below. 13 P. 193. On the twelfth day of November, 1886, the mandate from this court was duly filed in the court below; and on the twenty-ninth day of November, 1886, said cause came...