Hooker v. Chittenden
| Decision Date | 13 October 1898 |
| Citation | 76 N.W. 706,106 Iowa 321 |
| Parties | HOOKER v. CHITTENDEN. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Polk county; W. A. Spurrier, Judge.
Action to recover $1,500, being the proceeds of goods sold by defendant at retail, for which he was to account to plaintiff at fixed prices. The defendant denied the indebtedness, and, by way of counterclaim, asked to be allowed damages for the wrongful and malicious suing out of a writ of attachment. Trial to jury. Verdict and judgment for defendant. Plaintiff appeals. Reversed.Ayers, Woodin & Ayers, for appellant.
Read & Read, for appellee.
The general verdict was for the defendant, and fixed the amount of his recovery at $100. In the special verdicts, the jury found by the fourth that the plaintiff was entitled to recover $1,500, as claimed in his petition; by the first, second, and third, that the writ of attachment was sued out wrongfully and maliciously; by the fifth, that the defendant suffered actual damages in the sum of $200; and, by the sixth, that he was entitled to $1,400 as exemplary damages. It will be observed that these findings are not inconsistent with the general verdict. Nevertheless, the plaintiff filed his motion, entitled “Motion in Arrest of Judgment,” in words following: “Now comes the plaintiff, and moves the court to set aside the general verdict of the jury in this case, and to render a judgment for the plaintiff, and against the defendant, on the fourth special finding or verdict of the jury, and to set aside the first, second, third, fifth, and sixth findings and special verdicts of the jury, for the following reasons.” Twenty-nine grounds appropriate for a motion of a new trial are then set out, none of which, if well founded, would authorize the court in sustaining this motion. No reasons are stated for rendering judgment, notwithstanding verdict, under sections 3757 and 3758 of the Code. It is somewhat difficult to determine the purpose of appellant in presenting such a motion to the court. He urges that it complies with the requirements of section 3755, which is in part: It is very evident, without setting out the causes enumerated, that, in order to obtain a new trial, the aggrieved party must apply therefor. While the title of this motion is a misnomer, the plaintiff may well be presumed to have asked the relief he desired. A new trial is not included in his request. Indeed, it is absolutely inconsistent with the judgment he prays. In asking that the general verdict be set aside, and also five of the special interrogatories, he sought only what was necessary to accomplish before the relief prayed could be granted. The appellant explains his motion by saying a new trial was only desired on the counterclaim. If so, he was unfortunate in not making his wishes known to the court. The record is in a condition which precludes determining whether a new trial could have been granted on a part of the issues. See Bond v. Railway Co., 67 Iowa, 712, 25 N. W. 892;Woodward v. Horst, 10 Iowa, 120.
2. It is also urged that the motion was treated as a motion for new trial in the lower court. The mere fact that it was so designated in the judgment does not authorize this conclusion, and we know of no rule requiring a party to point out the defects in such a motion made by his adversary.
3. The appellee insists that by filing this motion the plaintiff waived all errors not referred to therein, and which might have been considered without motion for new trial. We have held that filing of a motion for judgment does not waive the consideration of errors alleged in an application for new trial. Pieart v. Railway Co., 82 Iowa, 148, 47 N. W. 1017. And it is not perceived why a different rule should obtain as to errors which may be passed on without such an application. A motion for new trial filed too late is not a waiver of errors proper to be determined without it. Beems v. Railroad Co., 58 Iowa, 150, 12 N. W. 222;Kaufman v. Manufacturing Co., 78 Iowa, 679, 43 N. W. 612. And, where such a motion is pending, an appeal from a judgment rendered on a verdict will be considered, and errors arising on the trial be passed on, although the motion is undetermined. Hunt v. Railway Co., 86 Iowa, 15, 52 N. W. 668. It fairly follows from these decisions that a motion for judgment which does not involve a consideration of errors arising during the course of a trial in no manner waives the right to have such errors...
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