Ginsberg v. Williams

• Decision Date: 26 March 1965
• Docket Number: No. 39189,39189
• Citation: 270 Minn. 474,135 N.W.2d 213
• Parties: Louis GINSBERG, Respondent, v. Carle DeWayne WILLIAMS, Appellant.
• Court: Minnesota Supreme Court

Page 213

135 N.W.2d 213

270 Minn. 474

Louis GINSBERG, Respondent, v. Carle DeWayne WILLIAMS, Appellant.

No. 39189.

Supreme Court of Minnesota.

March 26, 1965.

Rehearing Denied May 21, 1965.

Syllabus by the Court

1. An appeal of right from an order which in effect vacates a judgment is no longer authorized by Minn.St. 605.09 of the Civil Appeal Code as amended by L.1963, c. 806.

2. Prohibition lies to restrain a court from exceeding its powers in a matter over which it has jurisdiction where there is no other speedy or adequate remedy available.

3. The power of the trial court to grant a new trial is limited to causes specified in Rules 59.01, 49.02, 63.01, Rules of Civil Procedure. An order granting a new trial solely 'in the interests of justice,' a cause not specified by the rules, is beyond the power of the court and, therefore, void.

Miley, Narveson, Nord & Webster, St. Paul, for appellant.

Dorfman, Rudquist, Jones & Ramstead, and Steven Z. Lange, Minneapolis, for respondent.

ROGOSHESKE, Justice.

On February 12, 1962, plaintiff commenced an action for damages arising out of an accident occurring on October 30, 1959, when defendant ran into the rear of his automobile. Following trial, which involved well-defined and sharply disputed issues of fact, the jury, on June 10, 1963, found for defendant. The next day, plaintiff moved for judgment n.o.v. or a new trial. ¹ On June 17 defendant waived costs, and judgment was entered. Two days later, the court heard oral argument on plaintiff's post-trial motion, and on July 5 entered an order denying judgment n.o.v. and granting plaintiff a new trial. The part of the order granting a new trial stated:

'IT IS FURTHER ORDERED, that said motion for an order granting a new trial herein, in the interests of justice, be, and the same hereby is, granted.'

The judgment was not expressly vacated; the grounds assigned in plaintiff's motion are not referred to in the order; and no explanatory memorandum is attached. Defendant sought review of the order by filing an appeal. While the appeal was pending, defendant secured from this court an order to show cause why the trial court should not be prohibited from enforcing the order for a new trial because plaintiff, before oral argument, moved to dismiss the appeal upon the ground that the order was nonappealable. At oral argument, defendant conceded that the order, although in effect one vacating the judgment, is no longer appealable under the revision of our Civil Appeal Code enacted by the 1963 legislature. ²

1. We are constrained to reach the same conclusion and to so hold. Whenever appellate review has been sought as of right, we have adhered to the rule that such right is purely statutory; hence, where the In 1913, the right to appeal from an order granting a new trial, formerly authorized without qualification, was narrowly limited. Since Spicer v. Stebbins, 184 Minn. 77, 237 N.W. 844, decided in 1931, and the 1945 amendment to Minn.St.1941, § 605.09, apparently provoked thereby, an order granting a new trial consistently has been held nonappealable unless based exclusively upon errors of law occurring at the trial. ⁴ Where, however, an order granting a new trial vacates a judgment, the order has been appealable as an order vacating a judgment. The source of this rule is Minn.St. 1961, § 605.09(3), of our Civil Appeal Code, which from 1856 until the 1963 revision provided that an appeal may be taken '(f)rom an order involving the merits of the action or some part thereof.'

issue of appealability has been raised, we have considered compliance with the statutes enumerating those cases in which an appeal may be taken as a jurisdictional prerequisite to the right of appeal. ³

This provision was used as a general 'catch-all' under which a substantial variety of orders was held appealable. ⁵ Among them was an order vacating a judgment. In the leading and early case of People's Ice Co. v. Schlenker, 50 Minn. 1, 2, 52 N.W. 219, Mr. Justice Mitchell declared:

'That an order vacating a judgment is appealable as 'an order involving the merits of the action' is no longer an open question in this court. A final judgment determines the rights of the parties to the action, and any order which vacates or modifies it necessarily affects the legal rights of the party in whose favor it is, and hence 'involves the merits of the action."

Since Noonan v. Spear, 125 Minn. 475, 147 N.W. 654, it has also been settled that the effect of an order granting a new trial after entry of judgment is to vacate the judgment, and that result follows even though the motion for a new trial did not formally request it. ⁶ Thus, as in Ayer v. Chicago, M., St. P. & P.R. Co., 189 Minn. 359, 249 N.W. 581, upon an appeal held properly allowed from an order granting a new trial, which in effect vacated a judgment, the merits of the order granting a new trial were fully reviewable.

The appeal here attempted is from an order which in effect vacated the judgment. Since the order was made after the effective date of the 1963 revision of the appeal code, defendant's right to appeal is governed thereby. ⁷ Clearly, the merits of the order granting a new trial would be reviewable under our prior holdings were it not for the changes made by the 1963 revision of our Civil Appeal Code. For reasons which we can only surmise, § 605.09(3) was not reenacted as part of the revision. Thus, the statutory basis upon which this type of order was held appealable as of right no longer exists.

In revising the code, the legislature adopted in large part the proposals made by the Minnesota Judicial Council in a report published in 1958. After several years of intensive study, the council approved and recommended a draft of a revised code prepared by its Committee on Appellate Practice and Procedure. Among its proposals were the restoration of the unqualified right to appeal from an order granting a new trial and the addition of the following new paragraph:

'The Supreme Court, in the interest of convenience and furtherance of justice and upon the petition of a party, may allow an appeal from any other order, except an order made during trial.' ⁸

The latter proposal was designed to enable this court, in its discretion and pursuant to rules promulgated by the court, to entertain--

'* * * an immediate appeal from any order other than:

'1. Orders otherwise appealable

'2. Orders made during the course of a trial.' ⁹

Since this proposal would have authorized discretionary review of many orders held appealable under Minn.St.1961, § 605.09(3), the drafting committee recommended that 605.09(3) be repealed. The legislature refused to accept either proposal and, in revising the code, reenacted the former § 605.09(4), now coded as Minn.St. 605.09(d), which limits an appeal from an order granting a new trial to only such orders as are based exclusively on errors of law occurring at trial. The legislature did not, however, reenact the language of § 605.09(3). The effect of this omission, whether through inadvertence or otherwise, is to again limit the statutory right to appeal from an order granting a new trial to orders based exclusively upon errors of law occurring at the trial, and also to abolish any right to appeal from an order vacating a judgment. While we firmly believe that the proposals urged by the Judicial Council 2. Defendant seeks review upon the ground that the court exceeded its power or jurisdiction in granting a new trial for a cause not authorized by Rule 59.01, Rules of Civil Procedure. Since the order is nonappealable, defendant argues that if the court is not restrained from enforcing the order he will suffer injury for which he has no other adequate legal remedy, and therefore prohibition lies.

would best serve the administration of justice, we feel constrained under the circumstances to hold that the statutory right to appeal from the order before us no longer exists.

Although the extraordinary remedy of prohibition was once limited to cases where the court lacked jurisdiction of the person or subject matter, it is now established that it will issue as well to restrain a court from exceeding its legitimate powers in a matter over which the court has jurisdiction when there is no other speedy or adequate remedy available. ¹⁰ As the wording of the order indicates that it was not based upon a cause expressly authorized by Rule 59.01, and since it was doubtful that an immediate review of the order by appeal existed, we issued an order to show cause why a writ of prohibition should not issue. Inasmuch as the defendant challenges the order solely on the ground that it is beyond the power of the court, and the remedy by an appeal after retrial is neither speedy nor adequate, we are of the opinion that prohibition under the rule above expressed is clearly available to test the narrow question of the court's power to grant a new trial 'in the interests of justice.'

3. Eight grounds or causes upon which a new trial may be granted are specifically set forth in Rule 59.01. ¹¹ In addition, a new trial may be granted under Rule 49.02 where answers to interrogatories are inconsistent with each other and with a general verdict and under Rule 63.01 upon the disability of the presiding judge. Although the grounds enumerated are comprehensive in scope and vest broad discretionary power in the trial judge to grant new trials to prevent injustice, none authorizes a new trial solely 'in the interests of justice.' The question thus arises whether or not the grounds enumerated are exclusive Since Rule 59.01 superseded a prior statute, ¹² the case law interpreting that statute is relevant. Perhaps because of the limited appealability of orders granting a new trial, few cases have considered whether a new trial may be granted upon a ground other than those enumerated by the statutes. None of the cases we have been able to find appears to be decisive.

and therefore...