Johnson v. Patterson

• Decision Date: 12 December 1936
• Docket Number: No. 6430.,6430.
• Citation: 67 N.D. 132,270 N.W. 97
• Parties: JOHNSON v. PATTERSON.
• Court: North Dakota Supreme Court

67 N.D. 132

270 N.W. 97

JOHNSON

v.PATTERSON.

No. 6430.

Supreme Court of North Dakota.

Nov. 14, 1936.

Rehearing Denied Dec. 12, 1936.

Syllabus by the Court.

1.A motion for a new trial on the ground that the verdict is not justified by the evidence is addressed to the sound discretion of the trial court, and the action of the trial court in that regard will not be disturbed on appeal unless there be an abuse of discretion.

2.Such discretion must be a legal discretion and not arbitrary.

3.In determining whether the action of the trial court is in accordance with such principle, the appellate court will review the evidence to determine whether the discretion exercised was a legal and reasonable one, and if so found on such review the order granting the new trial will be sustained even though the trial court would have been justified in reaching a different conclusion.

4.Section 7945 of the Compiled Laws requires the trial court to “file a written memorandum concisely stating the different grounds on which his ruling is based,” with all orders granting or refusing a new trial.In the case at bar, such opinion was filed with the order granting a new trial, though written and dated several days before the order was made.Held such filing was in accordance with the statute.

Appeal from District Court, Bowman County; H. L. Berry, Judge.

Action by Guy W. Johnson against S. E. Patterson, wherein defendant set up a counterclaim.From an order granting plaintiff a new trial after a judgment dismissing action, defendant appeals.

Affirmed.

Conmy & Conmy, of Fargo, for appellant.

Simpson, Mackoff & Kellogg, of Dickinson, and Theo.B. Torkelson, of Bowman, for respondent.

BURR, Judge.

This case grows out of an automobile collision.Plaintiff bases his action upon the “negligence, carelessness, wantonness and maliciousness” of the defendant.The defendant admits the collision, denies carelessness and negligence on his part, and sets up a counterclaim.

The verdict was for the dismissal of the action.Judgment was entered pursuant thereto, the defendant's counterclaim dismissed, and the defendant appeals from an order granting the plaintiff a new trial.

The motion for a new trial alleges that the failure to allow damages was because of the passion and prejudice of the jury; the “insufficiency of the evidence to justify the verdict”; and other grounds.

On March 6, 1936, the trial judge signed a memorandum opinion wherein he reviews the evidence to some extent, and says:

“The case was tried to the jury and resulted in a verdict for the defendant and a motion for a new trial was made by the plaintiff on several grounds, one of which is based upon the ground of insufficiency of the evidence to justify the verdict of the jury.We feel well satisfied that a new trial should be granted on that ground.In our opinion the evidence in favor of the Plaintiff was so overwhelming that it is difficult to understand why the jury would bring in a verdict for the defendant under the circumstances.”

In this opinion the trial judge sets forth wherein he determines the defense was weak, gives his opinion that the standing and position of the defendant in the community “may have had something to do with action of the jury in this case”-thus hinting at prejudice-and concludes with this statement: “The attorneys for the Plaintiff may draw an order in conformity with this memorandum opinion.”

The order granting a new trial is dated March 18, 1936, was served March 23, 1936, and, together with the memorandum opinion, was filed June 9, 1936.

The appellant urges that the memorandum opinion should be ignored and that the ground of insufficiency of the evidence should not be considered “in view of the fact that the court's order does not state that it was made on this ground and no memorandum opinion was filed as required by the statute.”

Appellant admits that the court did write a memorandum opinion and that a copy was furnished his attorneys.

Section 7945 of the Compiled Laws provides:

“With all orders granting or refusing a new trial the judge shall file a written memorandum concisely stating the different grounds on which his ruling is based, and unless the insufficiency or unsatisfactory nature of the evidence is expressly stated in such memorandum, as a reason for granting the new trial, it shall be presumed, on appeal, that it was not on that ground.”

[1] In view of this statute, it is difficult to see wherein it can be claimed, “No memorandum opinion was filed as required by the statute.”Where, on a motion for a new trial, the trial court fails to file a memorandum opinion as required by section 7945 of the Compiled Laws, and does not state in the order that he granted a new trial because of the insufficiency of the evidence, the presumption is the new trial was not granted on such ground.Quaschnick v. Sandbo, 61 N.D. 599, 603, 239 N.W. 164;Pratt et al. v. Huber Manufacturing Company, 41 N.D. 301, 171 N.W. 246.But the court did write the opinion.Naturally it was signed before the order was drafted, but the opinion and the order were filed at the same time.

It is true the order granting the new trial does not specify the grounds upon which it is made, nor “upon its face by apt words briefly describe the affidavits, documents, papers and evidence upon which the order is made,” as required by section 7944 of the Compiled Laws; but this requirement is not mandatory,...