Rosencrans v. Bennett
| Decision Date | 24 October 1951 |
| Citation | 236 P.2d 798,193 Or. 45 |
| Parties | ROSENCRANS et al. v. BENNETT et al. |
| Court | Oregon Supreme Court |
Ramstead & Huey, of Eugene, for appellants.
Day T. Bayly, of Eugene, for respondents.
Before BRAND, Chief Justice, and HAY, LUSK, LATOURETTE and TOOZE, justices.
On April 18, 1950, after a jury trial, a judgment based on the verdict was entered of record in favor of plaintiffs against defendant, Fay M. Bennett, in the sum of $500. Thereafter, on April 24, 1950, said defendant moved to set aside the judgment and for a judgment notwithstanding the verdict or, in the alternative, for a new trial, said motion being as follows:
'Comes now, the defendant, Fay M. Bennett, doing business under the name and style of Eugene Community Builders, by his attorney, D. T. Bayly, and moves the court as follows:
'I.
'For an order setting aside the judgment dated April 18, 1950, in the above entitled case, and rendering a judgment for said defendant not-withstanding the verdict in said case dated April 18, 1950, on the ground and for the reason that the motion made by the defendant at the close of plaintiffs affirmative evidence constituted a motion for a directed verdict and a directed verdict should have been granted, but was refused by the court.
'In making the foregoing motion the defendant relies on Section 6-707 O.C.L.A. Am.1945, Ch. 149.
'II.
'And the defendant, Fay M. Bennett, by his attorney, D. T. Bayly, further moves that if the court decides not to grant the foregoing motion not-withstanding the verdict, said court make an order setting aside said judgment and granting a new trial on the following grounds.
'1. There was no evidence submitted at the trial to support the verdict rendered by the jury for the plaintiffs against the defendant, Fay M. Bennett.
'2. Said verdict of the jury dated April 18, 1950, is contrary to the instructions given by the court to the jury, to the effect that if the plaintiffs knew the title to the involved neon sign was held by Martin Brothers Neon Sign Company at the time of the signing by the plaintiffs of the final contract, their verdict should be for the defendant.
'3. The court made an error in law at the trial, which was excepted to by the defendant on the following occasions.
'a. At the close of the presentation of the affirmative evidence for the plaintiffs, the defendant moved for a non-suit as to defendant, Fay M. Bennett, on the ground and for the reason that both of the plaintiffs had, on the witness stand, admitted that they knew at the time of signing the final contract that the sellers, L. S. Rankin did not own the neon sign involved in this case, and the court erred in overruling said defendant's motion for a non-suit, and defendant's attorney duly excepted to said ruling of the court.
'b. In instructing the jury the court erred in not giving instruction IV requested by the defendant, which was as follows:
"I further instruct you that the earnest money receipt designated plaintiffs exhibit A, is a temporary agreement pending proof of title by the seller and that any knowledge gained by the purchaser before signing the contract superseding the earnest money receipt would nullify any claim for damage, because of representations as to title before the earnest money receipt was signed.'
'In making this motion for a new trial the defendant relies on Section 5-802(6) and (7) O.C.L.A.'
On June 2, 1950, the court entered the following order:
'It appearing to the Court that on the 18th day of April, 1950, the jury returned into court a verdict in favor of the plaintiffs and against the defendant Fay M. Bennett, for the sum of $500.00, the plaintiffs appearing by their attorney, Gordon A. Ramstead, and the defendants appearing by their attorney, D. T. Bayly, and on said date judgment was rendered based on the said verdict.
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Beglau v. Albertus
...whether such orders were granted by the trial courts on their own motion within 30 days. 10 Finally in Rosencrans et ux. v. Bennett et ux., 193 Or. 45, 236 P.2d 798 (1951), a trial court was reversed for allowing a new trial where a motion for a new trial had been filed, but where the order......
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Maulding v. Clackamas County
...to and supportive of the grounds stated in the order granting the new trial,' 272 Or. at 185, 536 P.2d at 1259; Rosencrans v. Bennett, 193 Or. 45, 236 P.2d 798 (1951); Correia v. Bennett and Johnson, 199 Or. 374, 261 P.2d 851 (1953). Here this requirement is met for the ground of erroneous ......
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Correia v. Bennett
...is without power to grant a new trial on its own motion after the expiration of 30 days from the date of judgment. Rosencrans v. Bennett, 193 Or. 45, 236 P.2d 798, 800; § 5-806, In the Rosencrans case the order granting a new trial was entered 42 days after the entry of judgment. The sole g......
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Maulding v. Clackamas County
...trend has not been unanimous for two other decisions, State v. Ellis, 232 Or. 70, 374 P.2d 461 (1962), and Rosencrans et ux. v. Bennett et ux., 193 Or. 45, 236 P.2d 798 (1951), have held that a motion for a new trial made on behalf of an aggrieved party could not be granted unless a proper ......