Goodeve v. Thompson
| Decision Date | 06 January 1914 |
| Citation | 137 P. 744,68 Or. 411 |
| Parties | GOODEVE v. THOMPSON. |
| Court | Oregon Supreme Court |
On petition for rehearing.
For former opinion, see 136 P. 670. Petition denied.
Two points are strenuously urged for a rehearing or affirmance of the judgment: (1) That the order denying the motion for a new trial cannot be reviewed by the Supreme Court unless such order is appealed from; (2) that the denial of the motion for a new trial was in the discretion of the trial court, and that this court cannot review it except for abuse of discretion. And also that the decision assumes that the verdict for $50,000 is excessive, and that the court reverses the case for that reason.
As to the first point, the purpose of the amendment of section 548 L. O. L., by the act of 1907 (L. 1907, p. 313), declaring that an order setting aside a verdict and granting a new trial for the purpose of an appeal should be deemed a judgment, was that the validity of the order may be tested before incurring the expense of the new trial. By this amendment, sections 174, 175, L. O. L., relating to a motion for a new trial, were also amended to make the procedure conform to the amendment of section 201, which requires the judgment to be entered the same day the verdict is returned. Oldland v. Oregon Coal & Nav. Co., 55 Or. 343, 99 P 423, 102 P. 596. The denial of such motion was not declared by that act to be a final judgment, and therefore is not appealable independently of the judgment sought to be set aside, as held in Macartney v. Shipherd, 60 Or. 136 117 P. 814, Ann. Cas. 1913D, 1257. Prior to the amendment of the statute the order denying the motion for a new trial, as well as the one allowing it, was reviewable as an intermediate order on appeal from the judgment, and the amendment certainly was not intended to deprive the movent of the right of review in the appellate court, or to affect the practice on motions for new trials other than to give an appeal from the order granting it before the retrial. It is said by Mr. Justice Moore, in the case of Colgan v Farmers' & Mechanics' Bank, 59 Or. 469, 106 P 1134, 114 P. 460, 117 P. 807, that if a party is materially prejudiced by any act or conduct occurring at the trial of which he had no knowledge until after verdict, refusal to set aside the judgment and to grant a new trial must now, as before the amendment of the statute, be an abuse of judicial discretion, which is subject to review on appeal. This, we think, is a reasonable application of the amendment of the statute. The right to review the order of the court in denying such a motion as to matters that the movent had no opportunity to present to the court during the trial existed before the amendment, and, although not a final order, it is still reviewable on appeal from the judgment. In that case the order denying the motion for a new trial was specifically included in the notice of appeal, although not mentioned in the opinion; and therefore no doubt influenced the decision. However, that objection was not suggested by plaintiff upon the hearing of the appeal in this case, although error in the ruling on the motion was assigned as error, and was the main reliance of the defendant in this court upon the questions raised by the motion for a new trial, devoting much of the brief thereto. The plaintiff in his brief and argument met defendant's contentions upon all of the questions so raised, with no suggestion that the question was not here. We considered the case on appeal on all these grounds, and the case went to final decision in this court; and, without determining whether...
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