McCann v. Gilmore
| Decision Date | 05 April 1919 |
| Docket Number | 1915 |
| Citation | 172 N.W. 236,42 N.D. 119 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Pierce County, A. G. Burr, J Reversed and remanded.
Reversed and remanded. Appellant entitled to statutory costs on appeal.
Fisk & Murphy and H. B. Senn, for appellant.
A motion for new trial is not directed at the judgment, but at the verdict, or at the decision of fact; for a new trial is a re-examination of an issue of fact. Sawyer v. Sargent (Cal.) 3 P. 872; Boston Tunnel Co. v. McKenzie, 67 Cal. 485, 8 P. 22; 3 C. J. p. 1264, § 1380 and also 2 Cyc. 975, notes 32 and 33 and cases cited; Carpentier v Williamson, 25 Cal. 154; Spanagel v. Dellinger, 38 Cal. 278; Naglee v. Spencer, 60 Cal. 10; Raynor v. Jones, 90 Cal. 78, 27 P. 24; Bryson v Bryson, 90 Cal. 323, 27 P. 186; Bode v. Lee, 102 Cal. 583, 36 P. 936; Knowles v. Thompson, 133 Cal. 245, 65 P. 468; Kaltschmidt v. Weber, 136 Cal. 675, 69 P. 497; Hellman v. Adler (Neb.) 83 N.W. 846; Smith v. Goodman (Neb.) 159 N.W. 418; Indiana R. Co. v. McBroom, 103 Ind. 310, 2 N.E. 760; Cook v. Smith, 58 La. 607, 12 N.W. 617; Molt v. Northern P. R. Co. 44 Mont. 471, 120 P. 809; Ex parte Fuller, 182 U.S. 562, 45 L.Ed. 1230, 21 S.Ct. 871; 1 Hayne, New Trial on Appeal, p. 14; Holmes v. Warren (Cal. ) 78 P. 954; Marzion v. Pioche, 8 Cal. 522; Schroder v. Schmidt, 71 Cal. 399, 12 P. 32; McDonald v. McConkey, 67 Cal. 325; Sharron v. Sharron, 79 Cal. 633.
In cases of appeal from a judgment, the lower court loses jurisdiction over the judgment, but it still retains jurisdiction over the motion for a new trial with power to rule thereon. Naglee v. Spencer, 60 Cal. 10; Raynor v. Jones, 90 Cal. 78, 27 P. 24; Knowles v. Thompson, 133 Cal. 245, 65 P. 468; Cook v. Smith, 58 Iowa 607, 12 N.W. 617; Gibson v. Manley, 15 Ill. 140; Cook v. Smith, 58 Iowa 607, 12 N.W. 617.
A new trial may be granted while an appeal is pending from the original judgment. United States v. Young, 94 U.S. 258, 24 L.Ed. 153; 4 Enc. L. & P. 45, 252, and cases cited; Voorhees v. John T. Noye Mfg. Co. 151 U.S. 135, 38 L.Ed. 101; Henry v. Allen, 147 N.Y. 346; Smith v. Lidgewood Mfg. Co. 64 A.D. 467, 69 N.Y.S. 975; Vernier v. Knauth, 7 A.D. 57, 39 N.Y.S. 784.
The effect of granting a new trial is to set aside both the verdict and the judgment, without any specific mention of either, and if, during the pendency of an appeal from the judgment, a new trial is granted by the trial court, the appeal will be dismissed. 20 R. C. L. 308, 313; United States v. Young, 94 U.S. 258, 24 L.Ed. 153; Scott v. Waggoner, 48 Mont. 536, L.R.A.1916C, 491, 139 P. 454.
Flynn & Traynor (Honorable L. N. Torson, of counsel) for respondent.
After the cause has been removed by appeal or writ of error, the trial court has no jurisdiction to entertain and no power to grant a motion for new trial or rehearing. 3 C. J. 1264, § 1380; Getchell v. G. N. R. Co. 22 N.D. 325; 3 C. J. p. 1265, § 1381; Minkkinen v. Quincy Min. Co. (Mich.) 135 N.W. 448; Winans v. Grable (S.D.) 99 N.W. 1110; Parkside Realty Co. v. McDonald (Cal.) 139 P. 805; Robinson v. Helena Light & R. Co. (Mont.) 99 P. 837.
The original action was brought by McCann to recover damages against defendant for alleged malicious prosecution of a certain criminal action against this plaintiff and respondent. In that action a judgment was entered for plaintiff on the 7th day of March, 1918. Thereafter notice of entry of judgment was served. Thereafter and on March 8, 1918, defendant served notice of motion, and motion for a new trial which was returnable on March 18, 1918, at Rugby, North Dakota. For different causes, the motion was not disposed of by the court until about August 10, 1918, when the court made its order granting a new trial, which was thereafter and on August 14th filed. On August 7, 1918, an appeal was duly perfected by the defendant from the judgment. August 27, 1918, the court made its order requiring the defendant to show cause why the order granting the motion should not be vacated. This was returnable on September 10th. On the 16th day of September, 1918, the court made its order setting aside the order granting a new trial and declaring it null and void, and declaring the judgments in the action and other proceedings therein should be and remain the same as if the order granting a new trial had not been made. The sole error assigned on this appeal is that the court was in error in holding that it had no jurisdiction to grant defendant's motion for a new trial and in setting aside and vacating the order granting said motion for a new trial. The appeal from the judgment was perfected under the erroneous belief that the time for appeal therefrom would expire August 8th instead of September 8, 1918, but in this appeal this is of no consequence.
Manifestly the court erred in holding that it was without jurisdiction to grant a new trial. The motion for the same was made within the proper time, and the court had jurisdiction to grant the motion for a new trial, and it erred in holding it had not. It also erred in setting aside and vacating the order granting the motion for a new trial on the ground that it had no jurisdiction to grant it. It is so manifestly clear that a motion for a new trial and the appeal from the judgment are each separate and independent remedies that it would seem a needless waste of time and energy to discuss the subject at any great length. An appeal may be perfected from the judgment without it in any manner interfering or divesting the court of jurisdiction to hear and determine a motion for a new trial, if the same is duly made in the manner and within time limited by statute for making such motion. A motion for a new trial is an application addressed to the sound discretion of the court, in which application is made upon certain grounds for a re-examination of the facts. If it be granted, the effect is to set aside the verdict and present all issues of fact for re-examination. The granting of a new trial operates as a matter of law to vacate and set aside the judgment. It would be an anomalous situation to grant a new trial, thus reinstating the case in the trial court for a retrial on all the issues of fact and of law, at the conclusion of which a verdict might be rendered and a valid judgment entered thereon, and still contend that the former judgment is effective.
If the motion for a new trial were made and granted prior to the time of entry of judgment, it is apparent no judgment could be entered. If the motion is made and granted after the entry of judgment, thenceforth the judgment is ineffective. Where the judgment has been entered and a motion for a new trial has properly been made, the judgment may be said to be contingent until the disposition of the motion for a new trial, when, after the new trial is granted, judgment becomes ineffective. If a new trial is denied, the judgment remains effective unless for other reasons in a proper case it is modified by the trial court or vacated and set aside by it or unless it is reversed on appeal if an appeal has been taken. There is abundant authority to sustain the views above expressed. See King v. Hanson, 13 N.D. 85, 99 N.W. 1085. The case of Spanagel v. Dellinger, 38 Cal. 278, is one which clearly illustrates that an appeal from...
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