Houck v. Hult, 6801.

• Court: Supreme Court of South Dakota
• Citation: 58 S.D. 181,235 N.W. 512
• Docket Number: No. 6801.,6801.
• Parties: HOUCK v. HULT et al.
• Decision Date: 16 March 1931

58 S.D. 181
235 N.W. 512

HOUCK
v.
HULT et al.

No. 6801.

Supreme Court of South Dakota.

March 16, 1931.

Appeal from Circuit Court, Clay County; R. B. Tripp, Judge.

Action by J. R. Houck against Walter Wallace Hult and others. Judgment for plaintiff, and, from an order granting a motion for new trial, plaintiff appeals.

Record remanded, with directions.

[235 N.W. 512]

O'Keeffe & Stephens, of Pierre, for appellant.

Bogue & Bogue, of Parker, and Gunderson & Gunderson, of Vermilion, for respondents.

CAMPBELL, J.

The above-entitled action was tried to the court without a jury, and findings, conclusions, and judgment were in favor of plaintiff. Thereafter defendants gave notice of intention to move for a new trial, which notice of intention stated that the motion would be “upon the following grounds,” and then proceeded to specify generally each of the causes set forth in section 2555, R. C. 1919, for the granting of a new trial, excepting only the causes specified in subdivisions 2 and 3 of said section, being misconduct of the jury and accident or surprise which ordinary prudence could not have guarded against.

Thereafter the motion for new trial was made, and said motion embraced all of the grounds set forth in the notice of intention.

Thereafter the learned trial judge made and entered an order purporting to grant a new trial, which said order after the title was as follows:

“The motion of defendants Anderson for a new trial having heretofore been submitted to the court by the above named parties on the settled record, and the court being convinced that in furtherance of justice that the motion should be granted, it is so ordered.

“To which plaintiff excepts and his exception is hereby settled and allowed.

“Done at Yankton, South Dakota, August 17, 1928.

“By the Court:

“R. B. Tripp, Judge.”

This order was prepared by the trial judge and not by counsel for either party.

[235 N.W. 513]

From this order plaintiff has appealed, and the sole assignment of error is that the trial court erred in making and entering the order granting new trial, for the reasons that said order “(1) does not set forth or specify the ground or grounds upon which said Order is based; (2) does not set forth or specify any legal ground for the granting of a new trial; and (3) is not based upon any ground urged by Respondents upon their Motion for a New Trial.”

The statutes of this state with reference to the occasions when a new trial may be granted are very liberal in their terms. Section 2558, R. C. 1919 reads as follows: “The verdict of a jury may also be vacated, and a new trial granted by the court in which the action is pending, on its own motion, without the application of either of the parties, when there has been such plain disregard by the jury of the instructions of the court, or the evidence in the case, as to satisfy the court that the verdict was rendered under a misapprehension of such instructions, or under the influence of passion or prejudice.”

[1] This section gives the trial judge an extremely broad power to grant new trials of his own motion if he believes that his instructions have been misunderstood or disregarded, or that the verdict is so contrary to the evidence as to indicate the influence of passion or prejudice, although this power must be exercised at the time the verdict is returned, if at all. See Delmont State Bank v. Ramsdell, 50 S. D. 188, 208 N. W. 827, and cases cited.

Section 2555, R. C. 1919, provides the cases wherein a new trial may be granted upon application of a party in the following language:

“The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

“1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court, or abuse of discretion by which either party was prevented from having a fair trial.

“2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

“3. Accident or surprise, which ordinary prudence could not have guarded against.

“4. Newly discovered evidence, material to the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

“5. Excessive damages, appearing to have been given under the influence of passion or prejudice.

“6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law.

“7. Error in law, occurring at the trial and excepted to by the party making the application.”

The very liberality of the language of this statute makes it extremely difficult for a party appealing from the granting of a new trial, and for this court in such case, to know what particular error or errors the trial judge believes to have been committed sufficient to justify the granting of a new trial, unless in his order granting such new trial he affirmatively specifies his reason or reasons for so doing with much greater detail and particularity than merely to reiterate the broad general grounds set forth in the statute.

This situation was pointed out in an opinion of this court in Norman v. Miller, 40 S. D. 399, 167 N. W....