Linderman v. Nolan

• Decision Date: 11 September 1905
• Citation: 16 Okla. 352,1905 OK 129,83 P. 796
• Court: Oklahoma Supreme Court
• Parties: C. J. LINDERMAN v. J. T. NOLAN.

1905 OK 129

83 P. 796

16 Okla. 352

C. J. LINDERMAN v. J. T. NOLAN.

Supreme Court of Oklahoma

Decided: September 11, 1905

Syllabus

¶0 1. VERDICT--Set Aside, When. It is the duty of a trial judge to set aside the verdict of a jury unless he is satisfied that substantial justice has been done. An appellate court should not set aside a verdict unless it is manifest that injustice has been done.

2. PRACTICE--New Trial Granted--Procedure. Where a trial has been had in the district court and a verdict returned in favor of the defendant, and the court, on motion of the plaintiff grants a new trial, to which ruling the defendant excepts, the defendant may either appeal to the supreme court at once, without waiting for the result of the second trial, or he may participate in the second trial and if the judgment is adverse to him, appeal from the final judgment, and if one year has not elapsed from the time the first motion for new trial was granted, he may include in his petition in error the assignment that the trial court erred in granting the first new trial, and have reviewed the question as to whether the action of the trial court in granting such new trial was erroneous.

3. APPEAL--New Trial--Order Granting--Reversed, When. The supreme court will not reverse the order of the trial court granting a new trial, unless the supreme court can see beyond all reasonable doubt that the trial court has manifestly and materially erred with respect to some pure, simple and unmixed question of law, and that except for such error the ruling of the trial court would not have been made, as it was made, and that it ought not to have been so made.

4. TRIALS--Order of. The statute prescribing the order of trial for cases upon the trial calendar, is not mandatory, but vests large discretion in the trial court to dispose of the causes in such order as will the most economically and speedily dispose of the business before the court.

5. TRIALS--Absence of Counsel. While courts ordinarily, through courtesy, will call counsel when their cases are reached for trial, such is not a duty, and it is no abuse of discretion to proceed to trial with a cause when it is reached for trial in the absence of one of the parties or his counsel, where no postponement has been granted or permission given to be absent.

Error from the District Court of Noble County; before Bayard T. Hainer, Trial Judge.

H. A. Johnson, for plaintiff in error.

H. B. Martin, Chas. R. Bostick, Jr., Green & Martin, for defendant in error.

BURFORD, C. J.

¶1 The plaintiff in error, C. J.Linderman, was sued in the district court of Noble county by the defendant in error, John T. Nolan, upon three several promissory notes of the aggregate value of $ 198.79, executed by Linderman to Nolan. The answer alleged partial failure of consideration and also that the notes had been materially altered after their execution and delivery. The cause was tried to a jury on April 18, 1903, and verdict returned and judgment rendered in favor of the defendant. The court, on motion of the plaintiff, granted a new trial. The defendant excepted to the order granting a new trial, and asked and was granted time to make and serve a case. Before the expiration of the time last granted, he applied for an extension of the time upon the ground that the court stenographer had been unable to transcribe the notes of the trial. The court denied this application, and no case was served or settled and no appeal was perfected.

¶2 The cause was regularly assigned for trial at the succeeding term of court, and was reached on December 18, 1903. When the cause was called for trial, the defendant and his counsel were absent from the court room, and the court proceeded in their absence. A jury was empaneled, the plaintiff's testimony introduced, the jury instructed, and verdict returned in favor of the plaintiff for the full amount of the principal and interest of the several notes. When the jury were retiring to consider of their verdict, the attorney for defendant appeared in court and requested to have the jury recalled, and trial reopened, and that he be permitted to introduce his testimony. This request was by the court denied, and judgment was afterward rendered upon the verdict. The defendant below brings the case to this court for review.

¶3 The first contention is that the trial court erred in refusing him an extension of time within which to make and serve his case. We do not deem this question to be of any importance. The only question the plaintiff in error could have presented for review had he been enabled to perfect the case made, was the order of the court granting a new trial. If any prejudicial error was committed by that action of the court, it may be reviewed in this case, and all the rights of plaintiff in error have been preserved. The case made contains all the proceedings had and evidence introduced on the first trial, and the petition in error, specifically alleges, as one of the assignments of error, that the trial court erred in granting the new trial, and with this state of the record the plaintiff in error has lost no rights by the failure of the judge to extend the time for making a case. Counsel has failed to make it apparent to this court that the trial court erred in sustaining the motion for new trial. The motion was upon two grounds, one of which was "Because said verdict is contrary to the evidence," which is equivalent to the statutory ground for new trial, "That the verdict is not sustained by sufficient evidence." The alleged alterations of the notes was a controverted question of fact, and the evidence was conflicting. The verdict of the jury was for the defendant. Unless this met the approval and concurrence of the trial judge, it was his duty to set it aside and order a new trial....