Peters v. Aetna Life Ins. Co. of Hartford, Conn.
| Decision Date | 14 December 1937 |
| Docket Number | No. 72.,72. |
| Citation | 282 Mich. 426,276 N.W. 504 |
| Parties | PETERS v. AETNA LIFE INS. CO. OF HARTFORD, CONN., et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by Pearl Peters against the AEtna Life Insurance Company of Hartford, Conn., and another. From the judgment, the named defendant appeals and the plaintiff cross-appeals.
Affirmed.
Appeal from Circuit Court, Wayne County; Glenn E. Warner, judge.
Argued before the Entire Bench.
Butzel, Eaman, Long, Gust & Bills, of Detroit, for appellant.
Sol Blumrosen, of Detroit, for appellee.
The facts and circumstances attending this litigation appear in our opinion rendered on a former appeal and reported in Peters v. Aetna Life Ins. Co., 279 Mich. 663, 273 N.W. 307. The trial in the circuit court by jury prior to the former appeal to this court resulted in a verdict for plaintiff; but judgment notwithstanding the verdict was entered for defendant. Plaintiff appealed, and our former decision was that the judgment entered in the circuit court should be reversed and the case remanded, with directions to enter judgment for plaintiff on the verdict. This was done. Thereupon, the insurance company (hereinafter called defendant), which had not perfected a cross-appeal to this court, made a motion in the circuit court for a new trial. The reasons assigned in support of this motion were that the court had erred in receiving over defendant's objection certain testimony offered by plaintiff, and in excluding testimony offered by defendant; also that the verdict of the jury was contrary to the great weight of the evidence. The circuit judge heard, passed on the merits, and denied defendant's motion for a new trial; and defendant has now taken this second appeal to this court from such denial.
Among other questions presented is the right of defendant to take this subsequent appeal following the entry of judgment for plaintiff in accordance with the decision of this court. In substance it is the contention of appellee that any and all claims of error on the part of defendant should have been presented by a cross-appeal at the time of the former appeal, and, having failed to do so, defendant cannot have review of such questions by a subsequent appeal.
This phase of appellate procedure is governed in part by statute and in part by court rule. Pertinent portions of the statute are 3 Comp.Laws 1929, §§ 14531 and 14532. The latter section contains the following: ‘If the party in whose favor the verdict of the jury was rendered shall appeal from the order of the trial court entering judgment notwithstanding the verdict and shall properly assign error thereon, and the supreme court shall be of the opinion that the trial court committed error in ordering judgment notwithstanding the verdict entered, the supreme court shall reverse such order of the trial court and shall order judgment entered in accordance with the verdict of the jury as rendered, unless it shall appear from the record that there is error in the case that would have entitled the party in whose favor judgment notwithstanding the verdict was entered, to a new trial if such judgment had not been entered by the trial court in which case a new trial shall be ordered.'
By rule of court it is provided: Michigan Court Rule No. 66, § 8.
At the time defendant's motion for a new trial was presented to the trial court, plaintiff objected to the court considering the motion on the ground that it was without jurisdiction so to do. The question presented is whether this contention is sound. Under the statutory and rule provisions above quoted, as well as decisions of this court, it must be held that plaintiff's contention is sound in part, but not wholly so.
Clearly, under the rule provision above quoted, it was made incumbent upon defendant to present, at the time of the settlement of the record on the first appeal, any assignment of error in consequence of which it claimed it was entitled to a new trial, in so far as such errors occurred on the trial. The rule provides that such assignments of error shall be presented by the appellee and be attached to the bill of exceptions then being settled in the same manner and with the same effect as the assignments of error by the...
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Cox v. BOARD OF HOSPITAL MANAGERS
...the Supreme Court, see Pulver v. Dundee Cement Co., 445 Mich. 68, 70, n. 2, 515 N.W.2d 728 (1994),3 and Peters v. Aetna Life Ins. Co., 282 Mich.App. 426, 276 N.W. 504 (1937). The majority asserts in footnote two of its opinion that if an appellee were allowed to argue alternative grounds fo......
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Montgomery Ward Co v. Duncan
...grounds for new trial or the action of the trial court on the motion for new trial before the appellate court. See Peters v. Aetna L.I. Co., 282 Mich. 426, 276 N.W. 504; Kauders v. Equitable L.I. Co., 299 Ill.App. 152, 19 N.E.2d 630; Dochtermann Van & Express Co. v. Fiss, Doerr & Carroll Ho......
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Cox v. Bd of Hosp. Mgrs. City of Flint
...Supreme Court, see Pulver v Dundee Cement Co, 445 Mich 68, 70, n 2; 515 NW2d 728 (1994),3 and Peters v Aetna Life Ins Co, 282 Mich App 426; 276 NW 504 (1937). The majority asserts in footnote two of its opinion that if an appellee were allowed to argue alternative grounds for affirmance, th......
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St. John v. Nichols
...469, 190 N.W. 238; Yacobian v. Vartanian, 221 Mich. 25, 190 N.W. 641; Levin v. Fisher, 217 Mich. 681, 187 N.W. 328; Peters v. AEtna Life Ins. Co., 282 Mich. 426, 276 N.W. 504. This court possesses inherent power, however, to order a new trial whenever it deems that the ends of justice so re......