National Farmers Union Auto. & Cas. Co. v. Wood

• Decision Date: 26 October 1953
• Docket Number: No. 4648.,4648.
• Citation: 207 F.2d 659
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: NATIONAL FARMERS UNION AUTO. & CAS. CO. v. WOOD.

207 F.2d 659 (1953)

NATIONAL FARMERS UNION AUTO. & CAS. CO. v. WOOD.

No. 4648.

United States Court of Appeals Tenth Circuit.

October 26, 1953.

Lowell White, Denver, Colo. (Walter A. Steele, Denver, Colo., on the brief), for appellant.

Mansur Tinsley, Lakewood, Colo. (H. Vance Austin, Sterling, Colo., on the brief), for appellee.

Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

The question presently presented on this appeal is whether after entry of the first judgment in the case the trial court effectively granted a new trial.

On June 11, 1951, the cause was submitted to the court without a jury. At the conclusion of the hearing, the court announced that the judgment would be in favor of the defendant and gave its reasons for that action. Thereupon, counsel for plaintiff moved in open court to dispense with a motion for new trial; the parties stipulated that a motion for new trial might be deemed to have been made and filed and denied; and the court stated in substance that the record would be so treated but no formal order was entered to that effect. On the same day, judgment was entered dismissing the action. Two orders appear in the record, each purporting to grant a new trial. The first order was signed by the court. It bears date June 21, 1951, bears a file mark of the same date, and provides "that the order made and entered on June 11, 1951, denying the oral motion of plaintiff for new trial be, and the same is hereby vacated, and the said oral motion for new trial is hereby granted." The second order was dictated from the bench on June 22. It recites at the outset that the court had theretofore, upon stipulation of counsel, denied the motion for new trial; that upon further consideration of the files and the evidence the court "vacates that order denying the motion for a new trial, and instead it is the order of the Court that the motion for new trial be granted." The court then stated that it was thought desirable to indicate to counsel the reasons for such action, and the court stated its views. And this provision followed immediately the expression of views on the part of the court, "For these reasons, and upon careful reconsideration of the case, it is the judgment of the Court that a new trial should be granted, and it hereby is granted." On November 7, 1952, plaintiff filed in the case a motion that the court amend its order dated June 21, 1951, so as to specify therein the grounds for such order. The motion gave as its grounds that under the provisions of Rule of Civil Procedure 59(d), 28 U.S.C. the court, in ordering a new trial of its own initiative, must specify in such order the grounds therefor; and that under the provisions of Rule 60(a), errors in orders arising from oversight or omission may be corrected by the court at any time prior to the docketing of an appeal. On the same day, the court entered an order reciting that the motion of plaintiff to amend the order dated June 21, 1951, coming on for hearing, and the court being advised in the premises, it was "Ordered that the `Order Granting Motion for New Trial' entered on June 21, 1951, be amended to include the Memorandum which was dictated by the Court from the Bench on June 22, 1951." On December 3, 1952, the cause was tried the second time. The jury returned a verdict for plaintiff; judgment was entered upon the verdict; and defendant appealed.

Appellant challenges the order bearing date June 21 purporting to grant a new trial. Rule of Civil Procedure 59 (b), 28 U.S.C., provides that a motion for new trial shall be served not later than ten days after entry of the judgment; and rule 59(d) provides that not later than ten days after entry of the judgment, the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds therefor. Even though a motion for new trial is lodged within ten days after entry of the judgment, the granting of a new trial on a ground not mentioned in the motion is to be treated as action taken by the court on its own initiative. Freid v. McGrath, 76 U.S.App.D.C. 388, 133 F.2d 350; Bailey v. Slentz, 10 Cir., 189 F.2d 406; Kanatser v. Chrysler Corp., 10 Cir., 199 F.2d 610, certiorari denied 344 U.S. 921, 73 S.Ct. 388.

The order of June 21 bears date ten days after entry of the judgment dismissing the action, and it recites that the previous order denying the oral motion for new trial be vacated and that such oral motion be granted. But there was no oral motion for a new trial stating grounds therefor. There was no motion of any kind. While the order recites that the motion of plaintiff for a new trial is granted, in the absence of any motion for new trial, the order must be considered only as action taken on the initiative of the court. Freid v. Mcgrath, supra. And, treating it as action taken on the initiative of the court, standing alone it was fatally ineffective to grant a new trial for the reason that it failed to set forth or specify the ground or grounds therefor. Marshall's U. S. Auto Supply v. Cashman, 10 Cir., 111 F.2d 140, certiorari denied, 311 U.S. 667, 61 S.Ct. 26, 85 L.Ed. 428.

Appellee impliedly concedes that the order bearing date June 21 represented action on the initiative of the court, and that standing apart and alone it was fatally defective for failure to set forth or specify therein the ground or grounds upon which the new trial was granted. But appellee places strong reliance upon the order entered November 7, 1952, to supply the essential element theretofore missing from the order bearing date June 21. Rule of Civil Procedure 60(a) provides in pertinent part that at any time before an appeal is docketed, the court may on its...