Greenberg v. Fireman's Fund Ins. Co. of San Francisco, Cal.

Decision Date28 January 1949
Docket Numbers. 32464-32466.
Citation35 N.W.2d 772,150 Neb. 695
CourtNebraska Supreme Court

[Copyrighted Material Omitted]

Syllabus by the Court

1. The purpose of a new trial is to enable the court to correct errors that have occurred in the conduct of the trial.

2. The motion for a new trial is a statutory remedy, and a new trial can be granted by a court of law only upon the grounds or some of them, provided for by the statutes.

3. The district court has an inherent power as a matter of judicial grace to consider assignments of error and to grant a new trial even though the motion was not made within the time required by statute. The inherent power of the court to grant a new trial is limited to those situations where prejudicial error appears in the record of the proceedings. It expires with the term of court at which the judgment was rendered.

4. The alleged errors that may be considered in the district court are those which appear in the record of the proceedings which resulted in the verdict and judgment about which complaint is made and which are called to the attention of the trial court by the motion or appropriate pleading.

5. Mere trifling errors are not sufficient to authorize the granting of a new trial.

6. Errors sufficient to cause the granting of a new trial must be errors prejudicial to the rights of the unsuccessful party.

7. The district court has the power and is required to consider and determine motions for a new trial by the exercise of its judicial discretion.

8. As used in this connection judicial discretion means the application of statutes and legal principles to all of the facts of a case.

9. A new trial is to be granted for a legal cause and where it appears that a legal right has been invaded or denied. A new trial is not to be granted for arbitrary, vague, or fanciful reasons.

10. The power of judicial discretion authorizes and requires the court to determine the question as to whether or not a legal reason exists for the granting of a new trial. If a legal reason exists and the complaining party makes his application in writing within the time fixed by statute the court has no discretion in the matter and the motion must be sustained. If a legal reason does not exist the court has no discretion in the matter and the motion must be denied.

11. While the trial judge need not give his reason for reaching a decision, the justification of the decision must be one that can be established from the record.

12. Where a ground or grounds for a motion for a new trial present a question or questions of fact which are in dispute the district court becomes the judge of such questions of fact. If a party desires a review of that determination, the showing thereon must be preserved in the record.

13. That rule does not authorize the district court to invade the province of the jury and to set aside the verdict and grant a new trial because the court arrived at a different conclusion than the jury on the evidence that went to the jury.

14. Where a party has sustained the burden and expense of a trial and has succeeded in securing the judgment of a jury on the facts in issue, he has a right to keep the benefit of that verdict unless there is prejudicial error in the proceedings by which it was secured.

15. The ruling of the court on a motion for a new trial is subject to review here.

16. Whether the decision was to grant a new trial or deny one, the questions here are, do the alleged error or errors appear in the record, were they called to the attention of the trial court by the motion, and do they constitute prejudicial error to the party complaining.

17. Rules of law will be applied to those assignments of error here with the same requirements whether the decision granted or denied a new trial.

18. An order granting a new trial will be scrutinized here with the same care as one denying a new trial.

19. There is no burden in the sense of a burden of proof upon either party. The burden is upon both parties to assist the court to a correct determination of the question or questions presented.

20. Under this rule if the trial court gave reasons for the granting of a new trial, the duty rests upon the appellant to present those reasons and in appropriate manner support his contentions that those reasons are not sustainable from the record and applicable rules of law. The appellee has then the duty, if he desires, of meeting those contentions. The appellee has the right to point out and submit additional reasons to sustain the trial court's judgment.

21. If the trial court gave no reasons for his decision, then the appellant meets the duty placed upon him when he brings the record here with his assignments of error and submits the record to critical examination with the contention that there was no prejudicial error. The duty then rests upon the appellee to point out the prejudicial error that he contends exists in the record and which he contends justifies the decision of the trial court. The appellant then in reply has the right, if he desires, of meeting those contentions.

22. Those errors will then be considered and determined here so far as necessary to the appeal, subject, of course, to the right to notice and consider plain errors not assigned.

23. Where testimony is offered and admitted in evidence without objection being made thereto, error cannot be predicated thereon on appeal. The rule applies to the district court when reviewing its own proceedings on motion for a new trial.

24. An expert or skilled witness may be properly re-examined as to matters concerning which he was cross-examined.

Fraser, Connolly, Crofoot & Wenstrand and Wm. H. Wright, all of Omaha, for appellants.

Beber, Klutznick, Beber & Kaplan and Eugene D. O'Sullivan, all of Omaha, for appellee.


SIMMONS Chief Justice.

This appeal involves three separate actions which were brought against three insurance companies to recover for damages to a stock of merchandise by fire. The defense in all three cases was that the fire was brought about by the act, design, and procurement of the plaintiff. The fire occurred June 30, 1940. The petitions were filed May 6, 1941. The actions were consolidated for trial, and are consolidated here on appeal. Trial began during the February 1942 term of the court on February 9, 1942, and resulted in a verdict for the defendants on March 6, 1942, on which judgments for the defendants were entered that day. Motions for a new trial were filed March 9, 1942. On November 3, 1942, at the October 1942 term of the court, the motions for a new trial were heard and granted. Thereafter at the October 1947 term of court and on January 19, 1948, the matters again went to trial, resulting in a verdict on January 29, 1948, for plaintiff. Motions for new trial were filed February 6, 1948, and overruled February 26, 1948.

The first two grounds for the motions of February 6, 1948, were that the court erred in vacating and setting aside the verdict of the jury rendered on the first trial of the actions, in which there was a verdict for the defendants, and in granting a new trial. This appeal by the defendants challenges the correctness of the court's ruling on those matters. We accordingly are presented the specific questions of the scope of the power of the district court to hear a motion for a new trial filed within time, and to set aside a verdict and judgment at a term subsequent to that in which the verdict and judgment were rendered and entered, and the scope of our power and the procedure to review that action. We find that the trial court erred in granting the new trial and order the reinstatement of the judgments for the defendants.

It is the defendant's contention that while an order of the trial court will not be disturbed here unless it clearly appears that no tenable ground existed therefor, yet, if it appears that no tenable ground existed, the action of the trial court constitutes an abuse of discretion and should be reversed, and that no ground exists here.

It is the plaintiff's contention that unless it clearly and unequivocally appears that no tenable ground existed to sustain the motion that the decision granting the new trial will be sustained on appeal, and that the burden is upon the complaining party to show that there was an abuse of discretion and that defendants have not met that burden. Plaintiff further contends that it is the correctness of the order as a whole that is controlling.

These contentions and arguments based on them have caused us to re-examine and restate the rules that govern the district court in considering motions for a new trial in law actions involving jury trials, and likewise the rules that apply here in considering assignments of error based thereon. It is appropriate that this be done now in view of the provisions of section 25-1315.03, R.S.Supp., 1947, providing that an order granting a new trial is an appealable order. It is recognized that there is lack of clarity and consistency in our many decisions dealing with these questions, and that the rules here stated modify and in some instances overrule prior decisions.

The purpose of a new trial is to enable the court to correct errors that have occurred in the conduct of the trial. Tomer v. Densmore, 8 Neb. 384, 1 N.W. 315; Weber v. Kirkendall, 44 Neb. 766, 63 N.W. 35; Bailen v. E. P. Badger Import Co., 99 Neb. 24, 154 N.W. 850.

The motion for a new trial is a statutory remedy, and a new trial can be granted by a court of law...

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