Hylland v. Lawrenson, 9165
| Decision Date | 09 April 1951 |
| Docket Number | No. 9165,9165 |
| Citation | 47 N.W.2d 287,73 S.D. 605 |
| Parties | HYLLAND v. LAWRENSON et al. |
| Court | South Dakota Supreme Court |
John Carl Mundt, Sioux Falls, C. H. McCay, Salem, for plaintiff and respondent.
Davenport, Evens, Hurwitz & Smith, and Robert C. Heege, Sioux Falls, for defendants and appellants.
Defendants in a suit for damages resulting from a collision of motor vehicles have appealed from an order granting a new trial. The verdict of a jury being in defendants' favor, judgment was thereupon entered and notice of the entry of said judgment was served upon plaintiff on September 15, 1949. On March 11, 1950, four days short of six months subsequent to notice of entry of judgment, plaintiff filed a motion for new trial. By agreement of counsel said motion was presented to the trial court on the date of the filing thereof. The order granting a new trial bears date March 15, 1950, and was filed a week later.
Plaintiff's motion contains three so-called grounds, the same being stated in the language of subdivisions (1), (6) and (7) of SDC 33.1605. In addition, the motion recites that it is based upon the pleadings, orders, rulings et cetera, including shorthand notes. Defendants point out, and the settled record affirmed, that this motion is unsupported by affidavit or particulars as required by SDC 33.1606, as amended by order of this court dated April 24, 1946.
The body of the order granting a new trial is as follows: 'Plaintiff in the above entitled action, having moved the Court to vacate, set aside judgment heretofore entered in favor of the defendants and against the plaintiff, and for an Order granting a new trial and re-trial of the issues herein, and it having been stipulated that the hearing on said motion may be brought on for hearing on Saturday morning, March 11th, 1950, at the hour of ten o'clock in the forenoon, or as soon as counsel can be heard, and the plaintiff appearing by her attorneys John Carl Mundt and C. H. McCay, and the defendants appearing by their attorney Ellsworth Evans, of Davenport, Evans Hurwitz and Smith, and said motion having been duly presented, and the Court having listened to arguments of counsel, and having considered the matter, and,
'The Court having heard the evidence and being of the opinion that the defendant was negligent as a matter of law, in attempting to pass the plaintiff on the right, instead of on the left as set forth in the written opinion filed herewith, and that the Court considers that there was a plain disregard by the jury of the instructions of the Court and the evidence, and the Court being satisfied that the verdict was rendered under a misapprehension of such instructions and that said verdict was rendered under the influence of passion and prejudice, and the Court deeming that a new trial should be granted upon both the motion of the plaintiff and under Section 33.1609 SDC, it is therefore
'Ordered, that a new trial be, and the same is hereby granted.'
By appropriate assignments of error defendants assert insufficiency of the motion as a basis for the order appealed from the an absence of authority on the part of the trial court to rest said order upon the provisions of the code section referred to therein.
Plaintiff makes no attempt to meet the contention that her motion for a new trial was inadequate upon which to invoke the power of the court to vacate the verdict and judgment for defendants and to grant plaintiff a new trial. Relying altogether upon recitations in the order, evidently lifted from SDC 33.1609, and upon an argument of the trial court respecting the alleged negligent conduct of defendant Lawrenson at the time of the collision in question, plaintiff urges that the court properly resorted to its inherent power to award a new trial for the reasons set forth in the order. It is observed that the memorandum opinion referred to in the order, which opinion is made a part of the settled record, contains no mention of claimed contributory negligence on plaintiff's part. The testimony in support of this asserted negligence led to the verdict and judgment in defendants' favor.
We approach the questions thus presented with due regard for the rule repeatedly announced in prior decisions of this court, i. e., that an order granting a new trial will not be disturbed on appeal unless it is made to appear clearly that such order was the result of an abuse of sound judicial discretion.
Turning first to plaintiff's motion, and the total lack of a compliance with SDC 33.1606, as amended we are unable to guess with even slight hope of a fair degree of accuracy what plaintiff$hs counsel had in mind, as grounds for seeking a new...
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