Hall County ex rel. Wisely v. McDermott, 42430

Citation204 Neb. 589,284 N.W.2d 287
Decision Date09 October 1979
Docket NumberNo. 42430,42430
PartiesCOUNTY OF HALL, State of Nebraska, a body politic and corporate, ex rel. Patricia J. WISELY, Appellant, v. Ronald Leo McDERMOTT, Appellee.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. Trial: Verdicts: Appeal and Error. 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.

2. Trial: New Trial. The standard of judicial review of a trial court's order granting a new trial is whether or not the trial court abused its discretion. By its terms this discretion is necessarily broader than a narrowly isolated and rigid examination of the merits of each alleged error in the record. A combination of errors, for example, each of which in itself might not be grounds for granting a new trial, may result in a finding by the trial judge that justice will be served by retrying the issues in this case.

3. New Trial: Appeal and Error. This court will not ordinarily disturb a trial court's order granting a new trial, and not at all unless it clearly appears that no tenable grounds existed therefor.

Sam Grimminger, Hall County Atty., and John E. Story, Asst. County Atty., Grand Island, for appellant.

O. Wm. VonSeggern of Cunningham, Blackburn, VonSeggern, Livingston & Francis, Grand Island, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE and HASTINGS, JJ.

KRIVOSHA, Chief Justice.

The County of Hall, Nebraska, acting for and on behalf of Patricia J. Wisely (Hall County), appeals from an order of the District Court for Hall County, Nebraska, which granted to the appellee, Ronald Leo McDermott (McDermott), a new trial. Hall County maintains that the trial court abused its discretion in so granting the motion for new trial. We have examined the record in this matter and find that the trial court did not abuse its discretion in granting McDermott's motion for new trial, and affirm the judgment of the trial court.

This action had its inception in a "Complaint and Petition" filed by Hall County in the District Court for Hall County, Nebraska, seeking to have McDermott determined to be the father of a child born to Patricia J. Wisely. The complaint alleges that Hall County may be required to support the minor child and was in fact supplying child support through its division of welfare at the time the complaint was filed. Thereafter McDermott, through his then retained counsel, filed a demurrer which was overruled by the trial court. On August 31, 1978, counsel for McDermott filed an application with the court for authority to withdraw as counsel. The files indicate that a copy of the application was served on John Story, attorney for Hall County. The record, however, is silent as to any notice of the motion to withdraw being served upon McDermott. Thereafter, on September 12, 1978, the court entered an order permitting McDermott's then counsel to withdraw, at the same time setting the case for trial on October 10, 1978, at 1:30 p. m. The record fails to disclose that McDermott was notified of his counsel's withdrawal, or that any other counsel had been retained by McDermott and would have been prepared to go to trial on October 10, 1978.

The record does disclose, however, that on September 12, 1978, counsel for Hall County mailed a notice to McDermott advising him that trial in the matter was set for October 23, 1978, at 1:30 p. m. The certificate indicates that the notice was sent by regular mail and was neither certified nor registered. Thereafter on September 19, 1978, counsel for appellant, recognizing that the date for trial set out in the notice sent on September 12, 1978, was in error, sent a second notice to McDermott advising him that trial would be on October 10, 1978, rather than October 23, 1978. Again, the certificate filed by Mr. Story indicates that the notice was sent by regular mail and not be certified or registered mail.

On October 10, 1978, at the hour of 1:30 p. m., being the time set for trial, the record discloses that McDermott appeared in court without counsel. The record further indicates that McDermott had earlier in the day appeared before the trial court and requested a continuance for the reason that he was without counsel.

The trial court admonished McDermott for appearing without counsel, pointing out that the court had permitted his former attorney to withdraw on September 12, 1978. Specifically, the trial court said: "I permitted your attorney to withdraw on the 12th of September which should have been sufficient time for you to obtain an attorney and I set this matter for trial at that time." All of that, of course, may have been true if it had been shown that McDermott was given notice of those facts on or shortly after September 12, 1978. The record, however, clearly discloses that he was never made aware of his counsel's application to withdraw nor at the time was he advised of the fact that the trial court had sustained the motion to withdraw and that he was then without counsel.

The record is somewhat in conflict with regard to when in fact McDermott became aware that he was without counsel. When McDermott appeared before the trial court on October 10, 1978, he stated that he had received "the deal saying that Mr. Huston had resigned * * * just last week, Tuesday or Wednesday." The record is likewise unclear as to what the "deal saying that Mr. Huston had resigned" in fact was. There is nothing in the record to indicate that a notice of any kind concerning counsel's withdrawal was sent to McDermott. In McDermott's affidavit seeking a new trial, he alleged that he did not become aware of the fact that he was without counsel until October 9, 1978, the day before trial. Apparently the trial court was concerned by this conflict when granting the motion for new trial.

Hall County argues that the motion for new trial should not have been sustained, citing Greenberg v. Fireman's Fund Ins. Co., 150 Neb. 695, 35 N.W.2d...

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6 cases
  • Holmes v. Crossroads Joint Venture, S-99-438.
    • United States
    • Supreme Court of Nebraska
    • July 6, 2001
    ...29, 342 N.W.2d 1 (1983); Hegarty v. Campbell Soup Co., 214 Neb. 716, 335 N.W.2d 758 (1983); County of Hall ex rel. Wisely v. McDermott, 204 Neb. 589, 284 N.W.2d 287 (1979); Johnson v. Enfield, 192 Neb. 191, 219 N.W.2d 451 (1974); Lechliter v. State, 185 Neb. 527, 176 N.W.2d 917 (1970); Webs......
  • Bryan M. v. Anne B., S–15–075.
    • United States
    • Supreme Court of Nebraska
    • February 12, 2016
    ...be found in the statute and must be in accordance with the provisions thereof. 292 Neb. 731County of Hall ex rel. Wisely v. McDermott, 204 Neb. 589, 284 N.W.2d 287 (1979). See Bohaboj v. Rausch , 272 Neb. 394, 721 N.W.2d 655 (2006). Summarized in pertinent part, § 43–1411 provides that a pa......
  • Hegarty v. Campbell Soup Co., 82-341
    • United States
    • Supreme Court of Nebraska
    • June 24, 1983
    ...existed therefor. Shreves v. D.R. Anderson Constructors, Inc., 206 Neb. 433, 293 N.W.2d 106 (1980); County of Hall ex rel. Wisely v. McDermott, 204 Neb. 589, 284 N.W.2d 287 (1979). A motion for new trial should be granted only where there is error prejudicial to the rights of the unsuccessf......
  • White v. Mertens, 85-627
    • United States
    • Supreme Court of Nebraska
    • April 17, 1987
    ...... County of Hall ex rel. Wisely v. McDermott, 204 Neb. ......
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