Shuman v. Lesmeister
| Decision Date | 10 May 1916 |
| Citation | 158 N.W. 271,34 N.D. 209 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Pierce County, A. G. Burr, J.
From an order granting plaintiff's motion for a new trial defendant appeals.
Affirmed.
R. E Menzel, for appellant.
Where a motion for a new trial is noticed to be heard at a time certain, and the court, of its own motion, postpones the hearing and it is not brought up for six months thereafter or after the expiration of sixty days after the verdict or decision, and no cause shown for such extension, and no memorandum decision filed, the court lost jurisdiction. Session Laws 1913, chap. 131, §§ 2, 4, 6, 8; Feil v. Northwest German Farmers' Mut. Ins. Co. 28 N.D. 355, 149 N.W. 358.
B. L Shuman, for respondent.
The ex parte orders of the court were never objected to by any party, in writing or otherwise, and there has been no showing of error on the part of the court in making them. Further, participation on the hearing waived all objections. Rev. Codes 1905, § 7666, Comp. Laws 1913, § 8301; Johnson v. Northern P. R. Co. 1 N.D. 354, 48 N.W. 227; Tuttle v. Pollock, 19 N.D. 308, 123 N.W. 399; Tilton v. Flormann, 22 S.D. 324, 117 N.W. 377; Bishop & B. Co. v. Schleuning, 19 S.D. 367, 103 N.W. 387; O'Brien v. Miller, 4 N.D. 308, 60 N.W. 841; Session Laws 1913, chap. 131, § 6.
The minutes of the court constitute the courts record. Submission of matters, on the minutes, affords a speedy and inexpensive way of hearing the matter after the trial. Distad v. Shanklin, 11 S.D. 1, 75 N.W. 205; 14 Enc. Pl. & Pr. 915; 17 Enc. Pl. & Pr. 908.
When a new trial is denied, the burden is upon the appellant to comply strictly with all statutory requirements, and the showing that the lower court abused its discretion must be clear before the appellate court will interfere. Jackson v. Ellerson, 15 N.D. 533, 108 N.W. 241; Bertelson v. Ehr, 17 N.D. 339, 116 N.W. 335; State v. School Dist. 18 N.D. 616, 138 Am. St. Rep. 787, 120 N.W. 555; Blessett v. Turcotte, 20 N.D. 151, 127 N.W. 505; F. A. Patrick & Co. v. Nurnberg, 21 N.D. 377, 131 N.W. 254.
The court may grant a new trial on grounds not expressly named in the application. 14 Enc. Pl. & Pr. 718, subdiv. 2.
The discretion of the trial court in granting a new trial will not be questioned without a clear showing of abuse. 14 Enc. Pl. & Pr. 960-962; House v. Wright, 22 Ind. 383; Shepherd v. Brenton, 15 Iowa 84; McNair v. McComber, 15 Iowa 368.
Defendant appeals from an order granting plaintiff's motion for a new trial. Such motion was based upon the minutes of the court. After the order was granted, defendant's counsel prepared and caused to be settled, pursuant to law, a statement of case for use on the appeal.
The specifications of error are as follows: (1) The court erred in considering plaintiff's motion for a new trial at all; and (2) the court erred in granting plaintiff a new trial upon the grounds stated in the order for a new trial.
We deem the first specification without merit. It is predicated upon an alleged unwarranted delay in bringing the motion on for hearing, and it is asserted that the various ex parte orders continuing such hearing from time to time from June, 1914, to January, 1915, and also the various ex parte orders continuing the stay of proceedings from time to time until a decision could be had of such motion, were unwarranted because made without any showing of good cause therefor, and that for these reasons the court lost jurisdiction to entertain such motion. It appears from the record, however, that respondent is not chargeable with such delay, and that the various postponements and extensions were necessitated because--owing to other engagements--the court was unable to entertain the motion for a new trial at an earlier date. In view of this, we cannot hold that respondent lost his right to have such motion considered. But furthermore, the record fails to disclose that any objection whatever was made by appellant to the consideration of such motion, and, manifestly, he cannot urge such objection for the first time in this court. It is true that, in appellant's brief, counsel states that he orally objected to such consideration, but he concedes that the record fails to disclose the objection. Such omission is fatal to appellant's contention under his first specification.
Appellant's second specification of error must also be overruled. While as one of the grounds of the motion for a new trial, plaintiff, as stated, challenged the sufficiency of the evidence to support the verdict, but failed to point out any particulars wherein the evidence thus failed, still in so far as the record discloses no objection whatever was urged by defendant to such practice, and the trial court, notwithstanding such omission, considered and decided the motion. This being true, we do not think appellant is in a position to now urge the point covered by such specification, especially in view of his failure to incorporate in his statement of case the testimony introduced at the trial.
It is well settled that every presumption prevails in favor of the correctness of the conclusions reached by the trial court. Also that a stronger case must be made to justify interference on appeal from an order granting a new trial than where such relief has been denied. And in the absence of a clear showing of an abuse of the sound judicial discretion vested in the trial court, ...
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