Godfrey v. Godfrey

• Decision Date: 08 February 1906
• Citation: 127 Wis. 47,106 N.W. 814
• Parties: GODFREY v. GODFREY.
• Court: Wisconsin Supreme Court

127 Wis. 47

106 N.W. 814

GODFREY

v.GODFREY.

Supreme Court of Wisconsin.

Jan. 30, 1906.

Dissenting Opinion, Feb. 8, 1906.

Appeal from Circuit Court, Rock County; J. J. Dick, Judge.

Action by David Godfrey against Thomas G. Godfrey. From an order setting aside a verdict in favor of plaintiff and granting a new trial, plaintiff appeals. Reversed.

This action was brought to recover upon a promissory note. The trial resulted in a verdict and judgment for plaintiff. The court ordered a new trial on motion of defendant, on the ground that “said verdict was against the law, contrary to the instructions of the court, and unsupported by the evidence,” and ordered that costs abide the event of the action. The plaintiff appealed from the order, and complains that the court erred (1) in granting the motion, and (2) in ordering costs to abide the event of the action.

Marshall, J., dissenting in part.

William G. Wheeler, for appellant.

Fethers, Jeffris Mouat & Newhouse, for respondent.

KERWIN, J.

1. The evidence, but not the charge, is preserved in a bill of exceptions. Ie is claimed on the part of the plaintiff that the court abused its discretion in setting aside the verdict and granting a new trial, and that the evidence fully supports the verdict. There is evidence strongly tending to show that the note was without consideration and never delivered. It is apparent from the order made by the judge below in granting the new trial that he was of the opinion that the verdict was contrary to the evidence. Under such circumstances the lower court had the right in its discretion to grant a new trial, and we cannot see that such discretion was abused. Such action will not be disturbed, unless it clearly appears that there was an abuse of discretion. Eggen v. Fox (Wis.) 102 N. W. 1054;Connor Co. v. Goodwillie et al., 120 Wis. 603, 98 N. W. 528.

2. Error is assigned because of failure to order costs paid as condition of new trial. It is claimed by counsel for respondent that matter of costs on motion for new trial is within the discretion of the trial court. The trial court has some discretion in the matter, but where a new trial is ordered on the ground that the verdict is contrary to the evidence, this court has held that a new trial should be granted only on terms. Becker v. Holm, 100 Wis. 281, 75 N. W. 999;Wolfgram v. Schoepke, 123 Wis. 19, 100 N. W. 1054; Connor Co. v. Goodwillie, supra. On the record before us we hold that the new trial was granted because the verdict was contrary to the evidence, and therefore, reasonable terms should have been imposed as a condition thereof. Becker v. Holm, supra; Wolfgram v. Schoepke, supra. There is nothing in the record indicating that the court regarded the verdict perverse.

The order is reversed, and the cause remanded, with instructions to the court below to embody in the order granting new trial the payment of reasonable terms by defendant as a condition.

MARSHALL, J. (dissenting).

I dissent from the reversal of the order because costs were not imposed on respondent. Our practice as to this subject has drifted far away from that which prevailed when the Code was adopted, and which was intended to be firmly intrenched therein. The trend of evolution has been in the direction of increasing the burdens to be borne by sufferers from unjust verdicts. It has progressed so far, it seems, in that direction as to seriously interfere with the proper administration of justice. The additional step in that regard, taken in this case, moves me to write this history of the matter showing the necessity which exists, in my judgment, for a return to the anchorage of the written law. Our present practice is inconsistent with the Code, inconsistent with that here subsequent to the Code till within recent years, contrary to that in many, and I think most jurisdictions having a similar Code, and has no logical foundation to support it.

The tendency should be to soften the arbitrary rule that none but a dishonest verdict, which is wrong as contrary to the evidence, can be set aside and a new trial granted, except upon terms, rather than to harden it. It were better, in my judgment, to do away with it altogether. No reason has been assigned here during the history of the court and none, we venture to say, can be found elsewhere for making the victim of an unjust verdict,--in that it is so clearly contrary to the great weight of the evidence and the law as given by the court as to indicate mistake, bias or something worse,--pay his adversary for the privilege of another opportunity to submit his grievance to the judgment of a jury. The administration of impartial justice is the great primary principle upon which our judicial system should be grounded. That is what courts exist for. They should not tolerate practice rules, inconsistent with the purposes of their existence,--rules which rightly or wrongly suggest a purpose to deter persons whose rights have been violated from invoking the law of the land for relief. The attitude of courts should be one of invitation to those who have wrongs to be redressed to pass their portals, rather than that of a despot grudgingly dispensing favors for a consideration paid to the alleged wrongdoer. Such is the spirit of the Code. Such is the trend of modern thought. This arbitrary exaction from a blameless party for the benefit of his adversary has an appearance of discouraging litigation by making it burdensome regardless of the merits of the case. True, there is no such conscious purpose here, but anything like the appearance of such a purpose, all will agree, should be avoided.

The power of courts to relieve from unjust verdicts is inherent in their jurisdiction, though it is often regulated by statute, as it was designed to be here. That power was recognized at a very early date as essential to guard against possible mistakes, ignorance or bias of jurors, or errors of the court. There are instances on record of its exercise as early as the reign of Edward III. 3 Blackstone's Comm. 388. It became later a matter of English statutory law. Blackstone thus wrote of it in his day: “Granting a new trial” cures all “inconveniences, and at the same time preserves entire and renders perfect that most excellent method of decision, which is the glory of the English law.” 3 Blacks. Comm. 391. When that was written the arbitrary rule under discussion had not taken shape. Courts were not supposed to be powerless to unconditionally set aside a clearly unjust verdict, in that it was against the great weight of the evidence or the law as given by the court, though not dishonest, except upon condition of the sufferer being mulcted in costs for the benefit of his adversary. They exercised the broadest discretion in cases of strong probability that the decision of the jury was not in accord with the justice of the case.

If we find ourselves to-day with a rule of judicial making, contrary to the spirit of the Code and wrong in principle, in that it tends to defeat the real purpose of the judicial system, it is a practice regulation which may readily be changed by the same means it has grown to its present state. Why should the courts stand guard at their portals, preventing faultless sufferers from unjust verdicts, that stop short of dishonesty, from having the opportunity, at least, for redress till they have paid their adversary a consideration? Let us examine the history of the matter in search of an answer.

Prior to the Code in New York its courts commonly held to a very rigorous rule on the subject under discussion. There was supposed to be an inflexible one requiring the imposition of costs on the moving party as terms of setting aside a verdict as contrary to the evidence. It was applied in cases of what was denominated here in the beginning perverse verdicts. In view of that, doubtless, the Code makers as part of what was designed to be a new and complete system of procedure, including the regulation of costs, provided as follows: “The judge who tries a cause may, in his discretion, entertain a motion to be made on his minutes to set aside a verdict and grant a new trial * * * for insufficient evidence.” Section 264, Ann. Code N. Y. 1871. Note the absence of any express regulation of costs. That was left entirely under control of the trial judge as a part of his discretionary authority, thus enabling him to consider the facts of each case and impose costs or not according to the justice of the matter. The arbitrary rule thus intended to be efficiently abrogated, still persisted for the same reason that many purposes of the Code makers failed partly or wholly. The bench and bar, to a considerable extent, did not receive the new system kindly. So a body of judicial law was soon created treating is at a mere supplement to, or statutory recognition in part of the old system. In harmony with that the old rule was treated as not having lost any of its vitality. It was applied regardless of whether the verdict was perverse in the sense of being characterized by mere bias or mistake. It was administered so as to warrant the belief that nothing short of substantially a dishonest verdict was deemed sufficient to warrant a new trial without terms. Richards v. Sandford (N. Y.) 2 E. D. Smith, 349, and Collins v. Albany & Schenectady Railroad Co. (N. Y.) 12 Barb. 492, are good illustrations. An examination thereof will disclose that the verdicts were perverse, as we shall hereafter define perversity. They are referred to as perverse, and yet costs were imposed on the moving party. Instances are found indicating that in those days judges sometimes reluctantly applied the rule as it was then understood, but felt bound to do so not recognizing that the Code pointed a way out of the difficulty.

In Harris v. Panama Railroad Co. (N. Y.) 5 Bosw. 312, there was no question but what there was some evidence, in mere words, supporting the verdict. The jury probably decided honestly,...