Hensley v. Davidson Bros. Co.

• Decision Date: 10 June 1907
• Parties: HENSLEY v. DAVIDSON BROS. CO.
• Court: Iowa Supreme Court

135 Iowa 106

112 N.W. 227

HENSLEY

v.DAVIDSON BROS. CO.

Supreme Court of Iowa.

June 10, 1907.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

Action for damages. The facts are recited in the opinion filed on the first appeal. 103 N. W. 975. A second trial resulted in a verdict for the plaintiff which the court, on its own motion, set aside. From this ruling the plaintiff has appealed. Reversed.

McClain and Bishop, JJ., dissenting.

Ryan, Ryan & Ryan, for appellant.

Carr, Hewitt, Parker & Wright, for appellee.

LADD, J.

The law of the case was settled on the former appeal (103 N. W. 975); and, whether right or wrong, that ruling in so far as applicable to this case is a part of the irrevocable past. That adjudication is binding on the parties, and it was the imperative duty of the district court to follow it. The evidence was substantially the same as that introduced on the former trial; the only differences being that plaintiff testified that she saw the defendant's team before getting out of the wagon to go to the depot, concerning which no inquiry had been made before, and some variance in McDaniel's testimony bearing on his credibility as a witness. The records differ in no important particulars, such as might be persuasive that a different conclusion with reference to the submission of the cause to the jury should be reached. No objections or rulings of any kind prior to the submission of the cause to the jury are to be found in the record, and no exceptions to the instructions were saved. Nevertheless, when the jury returned into court with a verdict for the plaintiff, the court “immediately upon reading said verdict, on its own motion,” set it aside. Had this been done to correct some ruling in the course of the trial not necessary to challenge by motion in order to be renewed, a different question would be presented; but nothing previous had occurred to which the able counsel on either side had thought it worth while to save an exception. The ruling must have been owing to some supposed error lurking in the verdict which might have furnished the basis of a motion for new trial by the party aggrieved. An omission to so raise it would have been a waiver. For all that appears from the record, such might have been defendant's purpose. Our statute enumerates the grounds on which new trials shall be granted on application of the aggrieved party. Section 3755, Code. But there is no provision in the Code relating to orders of this kind on the court's own motion. That such right exists, however, is undisputable. It is one of the inherent powers of the court essential to the administration of justice. In Rex v. Gough, 2 Dong, 791, Lord Mansfield declared that, even though too late for a motion, if enough appeared, the court could grant a new trial, and in Rex v. Atkinson, 5 Term R. 437, note, is quoted as saying that, though too late for a motion, “if the court conceive a doubt that justice is not done, it is never too late to grant a new trial.” In Rex v. Holt, 5 Term R. 436, Lord Kenyon said he well remembered Rex v. Gough, “where the objection to the verdict was taken by the court themselves,” and Buller, J., observed, in concurring, that “after four days the party could not be heard on motion for new trial, but only in arrest of judgment; but if, in the course of that address, it incidentally appear that justice has not been done, the court will interpose of themselves.” In Weber v. Kirkendall, 44 Neb. 766, 63 N. W. 35, it is said that the power of courts of general jurisdiction, in the correction of errors committed by them, “is exercised, not alone on account of their solicitude for the rights of litigants, but also in justice to themselves as instruments provided for the impartial administration of the law.” And such is the view generally entertained by the courts in this country. Allen v. Wheeler, 54 Iowa, 628, 7 N. W. 111;Ellis v. Ginsburg, 163 Mass. 143, 39 N. E. 800;Standard Milling Co. v. White Line Central Transit Co., 122 Mo. 258, 26 S. W. 704;State ex rel. Henderson v. McCrea, 40 La. Ann. 20, 3 South. 380;Bank of Willmar v. Lawler, 78 Minn. 135, 80 N. W. 868;Com. v. Gabor, 58 Atl. 278, 209 Pa. 201; Thompson, Trials, 2411; State ex rel. Brainerd v. Adams, 84 Mo. 310. In the last case the court, in upholding the power, pertinently inquired: “If the court commits a palpable error in an instruction to the jury, or witness misconduct of members of the jury, which, on motion, would authorize it to set aside the verdict, shall it on account of the ignorance or timidity of the aggrieved party which prevents him from moving in the matter, render an unjust judgment on the verdict? If the jury find a verdict palpably against the law as declared by the court, is it powerless to maintain its own dignity and self-respect, unless some one who feels aggrieved shall move in the matter?” In several of the states the grounds on which the courts may act on their own motion in granting a trial are specified by statute construed by the courts to exclude all others. Townley v. Adams, 118 Cal. 382, 50 Pac. 550;Clement v. Barnes, 6 S. D. 483, 61 N. W. 1126; State ex rel. Brainerd v. Adams, supra. There the authority is found in the statutes the consensus of opinion seems to be that the ruling must be entered promptly upon the return of the verdict. Clements v. Barnes, supra. Gould v. Elevator Co., 2 N. D. 216, 50 N. W. 969. See Long v. Kingfisher Co., 5 Okl. 128, 47 Pac. 1063; 14 Ency. P. & P. 932. And several courts have indicated without deciding that the order must be entered within the time within which a motion for new trial must be filed. That a motion therefor is pending will not deprive the court of the power to order a new trial on grounds not raised therein. This must necessarily be so, for one of the controlling reasons for the existence of the power is to enable the court to guard the rights of parties, who, for some cause, have proven unable to protect themselves, and another to enable the court to correct its errors rather than wait for this to be done by the appellate court. But resort to this power will rarely be required, and it should be exercised with great caution and in aggravated cases only. Ample provisions are to be found in the Code of Procedure for the protection of litigants on their own application, and for the court to interpose, without affording the defeated party an opportunity to elect, whether he will accept the result, lays it open to the suspicion of partisanship. It is preferable to leave something to the attorneys engaged in the litigation. Especially was this true in ...