Neal v. Haight
| Decision Date | 07 June 1949 |
| Citation | 206 P.2d 1197,187 Or. 13 |
| Parties | NEAL <I>v.</I> HAIGHT |
| Court | Oregon Supreme Court |
3. The presumption is that the county clerk, in accordance with official duty and the instructions of the trial judge, caused the form or order bearing certain date and unsigned and filed in the court to be entered in the journal of the court. O.C.L.A. §§ 2-407(15), 93-927(6, 9).
Appeal and error — No entry in journal — Order granting motion for new trial — Want of jurisdiction
4. If there was no entry in the journal of court's order granting motion for new trial, there could be no appeal, and Supreme Court's only duty would be to dismiss appeal for want of jurisdiction. O.C.L.A. § 10-803.
New trial — Judge in chambers on his own motion
5. The fact that the statute refers to the granting of a new trial by the court does not amount to any determination that a new trial cannot be granted by the judge in chambers on his own motion, since, in construing the statute, it must be borne in mind that at common law, trial courts had inherent power to grant new trials upon their own motion. O.C.L.A. § 5-806.
Judges — Common law — Judges' chambers
6. At common law, much of the business of courts of general jurisdiction was transacted in the judges' chambers both in term time and in vacation.
New trial — Chambers — Motion for a new trial — Order
7. The statute authorizing any circuit court judge to decide motions, demurrers, and other like matters relating to any such judicial business coming before him in chambers includes authority to decide a motion for a new trial by making an order to that effect. O.C.L.A. § 13-202.
Evidence — Motions — Order — Judge — Court — Effective — Filed by clerk — Presumption — Entry in journal
8. Under the statute an order made by trial judge, as distinguished from an order of the court, does not become effective until it has been filed by the clerk, and, where the trial judge's order granting motion for new trial was filed by the clerk, the presumption is that it was also entered in the journal. O.C.L.A. § 13-202.
Motions — Direction of a court or judge — Made or entered
9. Under statute providing that every direction of a court or judge made or entered in writing and not included in a judgment or decree is an order, a direction by a judge is made when it is in writing and signed by the judge, and since the words "made" and "entered" are in the alternative in the statute, every direction of a judge entered in writing and not included in judgment is an "order". O.C.L.A. § 10-501.
New trial — Good practice requires judge sign orders
10. Good practice requires that a judge sign orders granting motions for new trial made by judge in chambers.
Motions — Order — Filed and entered — Verity — Unsigned order — "Order"
11. An order, when filed by the court and entered in the journal, imports verity.
New trial — Unsigned order — "Order"
12. In absence of any proceeding for the purpose of correcting the record, an unsigned order granting a new trial in chambers, which was entered in writing by county clerk under the instructions of the judge, comes within statutory definition of "order". O.C.L.A. § 10-501.
See Words and Phrases, Permanent Edition, for other judicial constructions and definitions of "Order".
Appeal and error — New trial — Unsigned order — Filed and entered
13. Where trial judge in chambers granted a new trial because of error of law in instructing upon contributory negligence in absence of evidence on the subject, the order was valid and appealable where it was filed by the clerk pursuant to direction of the court and entered in journal although the order was unsigned. O.C.L.A. §§ 10-501, 13-202.
New trial — Trial judge grants new trial upon his own motion — Dependent on prejudicial error
14. The power of the trial court or judge to grant a new trial upon his own motion, setting forth the grounds upon which the order was made, is not dependent upon the existence of reversible error as upon appeal, but is dependent upon the existence of prejudicial error, and upon appeal such order may be affirmed although no objection or exception was taken in the trial court.
New trial — Waiver of error — Prejudicial error
15. The waiver of error by failure to object or by invitation does not impair the inherent judicial power to grant a new trial if prejudicial error has occurred in the proceedings. Automobiles — Plaintiff entitled to assume that vehicle would not be negligently started up when plaintiff in perilous position
16. Where elevated tramway was not much wider than truck and both driver and plaintiff expected plaintiff to go forward and ask crane man to clear the road and plaintiff would have been visible to driver if he had looked, the plaintiff was entitled to assume, in absence of notice to the contrary, that the truck would not be negligently started up when plaintiff was in a perilous position at side thereof.
New trial — No substantial evidence of contributory negligence — Error in giving an instruction on the subject
17. In action for damages for injury by truck on elevated tramway where plaintiff had gone ahead to clear the road, there was no substantial evidence of contributory negligence, and trial court properly granted a new trial because of error in giving an instruction on the subject.
See 30 Am. Jur., 729, 748
39 Am. Jur., 37
30 A.L.R., 715, 717
58 A.L.R., 849
92 A.L.R., 1137.
37 Am. Jur., 512, 513, 717.
68 A.L.R., 264.
60 C.J.S., Motions and Orders, § 59.
Appeal from Circuit Court, Lincoln County.
Allan G. Carson, of Salem, and C.A. Degnan, of Crescent City, California, argued the cause for appellant. With them on the brief was Wallace P. Carson, of Salem.
Sam Kyle, of Albany, argued the cause for respondent. With him on the brief were Weatherford & Thompson and Willis, Kyle & Emmons, all of Albany.
Before LUSK, Chief Justice, and BRAND, ROSSMAN and HAY, Justices.
Action for damages caused by the alleged negligence of defendant in driving a truck against and injuring plaintiff. Defendant had a verdict and judgment. The issues relate to the validity of an unsigned order setting aside judgment and granting a new trial. If the order was valid, then the defendant asserts that error was committed by the granting of the new trial. Defendant appeals from "that certain * * * form of order * * *" granting a new trial.
AFFIRMED.
This case was tried in the circuit court of the state of Oregon for Lincoln County. The case was tried by the Honorable Carl E. Wimberly, Judge of the Second Judicial District which district includes both Lincoln and Douglas Counties.
On 26 September 1947 verdict for the defendant was rendered by the jury. On 10 October 1947 the trial judge who resides at Roseburg, county seat of Douglas County, signed the judgment for the defendant and caused it to be transmitted to the county clerk of Lincoln County at Toledo. The judgment was entered as of 26 September, the date of the verdict. Concerning the order for a new trial we quote from the Bill of Exceptions which was duly settled and signed by the trial judge:
"Circuit Judge"
The Bill of Exceptions continues as follows:
1, 2. It might be suggested that we know of no right to appeal from a "form of order" and that unless there was an order there could be no appeal. Defendant's theory is that no order for a new trial was ever made. Upon that theory there would be nothing from which to appeal. On the other hand, if there was an order made, then the notice of appeal should more properly have specified that the appeal was taken from the order.
3, 4. We must presume that the county clerk, in accordance with official duty and the instructions of the trial judge, caused the "form or order bearing date October 10, 1947, unsigned, and filed in the above-entitled court" to be entered in the journal of the said court. O.C.L.A., § 2-407 (15); O.C.L.A., § 93-927 (6), (9); Allen et al. v. Levens et al., 101 Or. 466, 471, 198 P. 907, 199 P. 595. Our statute provides...
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