Huntsman v. First Nat. Bank of El paso, Texas

• Decision Date: 17 February 1926
• Docket Number: Civil 2369
• Citation: 29 Ariz. 574,243 P. 598
• Parties: JOEL H. HUNTSMAN, Appellant, v. THE FIRST NATIONAL BANK OF EL PASO, TEXAS, a Corporation, Appellee
• Court: Arizona Supreme Court

243 P. 598

29 Ariz. 574

JOEL H. HUNTSMAN, Appellant, v. THE FIRST NATIONAL BANK OF EL PASO, TEXAS, a Corporation, Appellee

Civil No. 2369

Supreme Court of Arizona

February 17, 1926

APPEAL from an order of the Superior Court of the County of Pima.George R. Darnell, Judge.Order affirmed.

Mr Elwood B. Frawley, for Appellant.

Messrs Curley & Pattee, for Appellee.

OPINION

ROSS, J.

This is an appeal by the defendant from an order granting the plaintiff a new trial.The action was brought to collect a promisory note given to plaintiff by defendant and others.The defendant in his answer admitted its execution, but claimed that it was without consideration as far as he was concerned that it was usurious, and that his signature thereto was obtained by plaintiff through fraud and deceit.The case was tried before a jury upon the last issue; the other two issues being by the court held to be without any support in the evidence.The grounds of the motion for new trial were various in number, but, since the order vacating and setting aside the verdict and judgment was general, we cannot determine therefrom the particular reason for the court's action.The court's order is as follows:

"The motion of plaintiff herein for new trial having been heretofore argued and submitted to the court for consideration and decision, . . . and the court being now fully advised in the premises, it is ordered that said motion for new trial be granted."

Notwithstanding the general nature of this order, defendant in his assignments of error assumes that it was granted by the court because: (1) The evidence was not sufficient to warrant submitting the case to the jury; (2) because of material error in the record; and (3) because the only evidence upon which a verdict could be supported was hearsay.He predicates his contention that the order is specific and not general upon certain oral statements made and reasons given by the court from the bench in granting the motion for a new trial.We think, however, that the court's order, and not its oral opinion, stenographically reported, is controlling.The statute does not require the court to give its reasons, either orally or in writing, for granting the motion for a new trial.As was said in Hinshaw v. Security Trust Co.,48 Ind.App. 351, 93 N.E. 567:

"The law does not require that a trial court shall deliver his opinion in writing.If such an opinion is delivered, it has no proper place in the record; and, even though such an opinion is copied into the record of the lower court and afterward embodied in the record on appeal, this court cannot consider it for any purpose."

See, also, 4 C.J. 102, § 1708;Deatsch v. Fairfield,27 Ariz. 387, 38 A.L.R. 651, 233 P. 887;Brown v. Peterson,27 Ariz. 418, 233 P. 895.

In reason, the opinion of the court in granting a motion for a new trial is no part of the court's order.In Classen v. Thomas,164 Cal. 196, 128 P. 329, the court said:

"It is conceded, as it must be under the decisions, that a written opinion of the trial judge filed in determining a motion for a new trial constitutes no part of the record on appeal and cannot operate to limit the effect of the order as actually made.Any limitation of the grounds upon which the order is made must, to be effectual, be specified in the order itself. . . .Where there is an order granting a new trial entered upon the minutes of the court, and also an opinion filed showing the reasons for the granting of the motion, and concluding with the words 'the motion for a new trial is granted,' the order entered in the minutes is the only record of the court's action, and is to be measured by its terms, and not by the reasons which the court may give for it."

See, also, Morgan v. Robinson Co., 157 Cal. 348, 107 P. 695, in which it is said:

"There is, therefore, no merit in the appellant's contention that we are here to treat that opinion as declaring the views of the trial judge on the question of the sufficiency of the evidence.We must look solely to the bill of exceptions and to the order granting a new trial, and if that order might properly have been granted upon the ground that the evidence on any material issue was not sufficient to sustain the verdict, the order must be affirmed."

The rule is that where an order granting a motion for a new trial is general in its terms, it will be affirmed if it could properly have been granted on any of the grounds assigned.One of the grounds of the motion was that the evidence did not justify the verdict.That this presented a ground resting in the sound discretion of the trial court is well settled.The generally approved rule is stated in 20 R.C.L. 275, section 57, as follows:

"Whether or not a new trial should be granted for the reason that the verdict is against the weight of the evidence is a question peculiarly within the sound legal discretion of the trial judge, who has the advantage of seeing the witnesses, of hearing their testimony orally delivered, and of observing their demeanor and conduct upon the stand.Hence the exercise of such discretion will not be disturbed on appeal unless a clear abuse thereof is apparent."

In Holloway v. Savage,68 Wash. 614, 123 P. 1021, quoting fromSnider v. Washington Water Power Co.,66 Wash. 598, 120 P. 88, the rule is stated as follows:

"We have held by an unbroken line of decisions that a motion for a new trial is necessarily addressed to the sound discretion of the trial court, and when the motion has been granted for insufficiency of evidence the order will not be disturbed unless the evidence is undisputed or the discretion has been clearly, and as said in one case, grossly abused.'A motion for a new trial is addressed to the sound discretion of the court and will not be interfered with on appeal unless it is manifest that the discretion vested in the court was grossly abused.'"

The rule followed in this court, and appellate courts generally, should not be confused with the rule applicable to trial courts.The distinction of the rule in the two cases is stated in Gate City Nat. Bank v. Boyer,161 Mo.App. 143, 142 S.W. 487, as follows:

"It is hardly necessary for an appellate court to say that when a trial is had before a jury their verdict will not be set aside if there is any substantial evidence, or if two different conclusions could reasonably be drawn from the evidence.But the rules governing trial courts in reviewing verdicts because not supported by sufficient evidence are not the same as those governing the appellate court.The trial courts may weigh the evidence, and, if they think injustice has been done, should grant a new trial.It is their duty to supervise the verdict of the jury and grant a new trial if the verdict in the opinion of the court is against the weight of the evidence, or if it is arbitrary and manifestly or clearly wrong, or if it appears to be the result of passion, prejudice or...