Studebaker Brothers Co. of Utah v. Harbert
| Citation | 207 P. 587,35 Idaho 490 |
| Parties | STUDEBAKER BROTHERS COMPANY OF UTAH, a Corporation, Appellant, v. JOE A. HARBERT, Respondent |
| Decision Date | 31 May 1922 |
| Court | United States State Supreme Court of Idaho |
NEW TRIAL-NOTICE OF INTENTION-SHOULD CONTAIN SPECIFICATIONS OF INSUFFICIENCY-MOTION NEED NOT AND MAY BE ORAL OR IN WRITING-WHEN EVIDENCE INSUFFICENT.
1. Notice of motion for a new trial must specify the particulars in which the evidence is insufficient to sustain the verdict but such specification is not necessary in the motion, which follows the notice, and may be oral or in writing.
2. Where a verdict is without any substantial support in the evidence, it should be set aside.
APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. James G. Gwinn, Judge.
Action on a promissory note. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with instructions for new trial.
Judgment reversed and a new trial granted, with costs to appellant.
C. W Morrison, for Appellant.
"A verdict or finding of the jury must be based upon and conform to the evidence; and a verdict wholly unsupported by any evidence whatever should not be allowed to stand." (Abbott's Civil Jury Trials, 3d ed., p. 748; Continental Life Ins. Co. v. Yung, 113 Ind. 159, 3 Am. St. 630, 15 N.E. 220; Quinton v. Cutlip, 1 Okla. 302, 32 P. 269.)
That a verdict is palpably against the evidence is good ground for a new trial. (Western Ry. of Alabama v. Mutch, 97 Ala 194, 38 Am. St. 179, 11 So. 894, 21 L. R. A. 316; 29 Cyc. 830.)
Where there is no substantial conflict in the testimony, and it appears that a jury misunderstood the evidence, or misapprehended its scope and effect, a new trial will be granted. (Rankin v. Thompson, 7 Colo. 381, 3 P. 719.)
A new trial should be granted where the alleged insufficiency of the evidence is convincingly shown. (Western Mining Supply Co. v. Melzner, 48 Mont. 174, 136 P. 44; Martini v. Oregon W. R. & Nav. Co., 73 Ore. 283, 144 P. 104; Johnson v. Domer, 76 Wash. 677, 136 P. 1169; Kester v. Wagner, 22 Wyo. 512, 145 P. 748; Chicago, R.I. & P. Ry. Co. v. Reardon, 1 Kan. App. 114, 40 P. 931; Houghton v. Market St. Ry. Co., 1 Cal.App. 576, 82 P. 972; In re Caspar's Estate, 172 Cal. 147, 155 P. 631; James v. Hood, 19 N.M. 234, 142 P. 162; Hudson v. Riley, 104 Kan. 534, 180 P. 198; Hayne on New Trial and Appeal, sec. 288; Barnes v. Sabron, 10 Nev. 217; Watt v. Nevada Central R. Co., 23 Nev. 154, 62 Am. St. 772, 44 P. 423, 46 P. 52, 726; Quayle v. Ream, 15 Idaho 666, 99 P. 707.)
New trial may be granted where verdict is against the instructions of the court. Instructions, whether right or wrong, constitute the law of the case, and it is the duty of the jury to follow them. (Crane v. Chicago & N.W. R. Co., 74 Iowa 330, 7 Am. St. 479, 37 N.W. 397; Limburg v. German Fire Ins. Co., 90 Iowa 709, 48 Am. St. 468, 57 N.W. 626, 23 L. R. A. 99; 29 Cyc. 818, 819; Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Grisinger v. Hubbard, 21 Idaho 469, Ann. Cas. 1913E, 87, 122 P. 853; Doody v. Boston & Maine R. R., 77 N.H. 161, Ann. Cas. 1914C, 846, 89 A. 487.)
The motion for a new trial is a mere formality and is not required to state the grounds upon which it is made. (Lish v. Martin, 55 Mont. 582, 179 P. 826; Times Printing & P. Co. v. Babcock, 31 Idaho 770, 176 P. 776.)
C. A. Bandel, for Respondent.
A motion will be sustained to disregard a statement on motion for new trial when such statement does not specify wherein the evidence is insufficient to support the judgment. (Robson v. Colson, 9 Idaho 215, 72 P. 951; Eddelbuttel v. Durrell, 55 Cal. 277; Swift v. Occidental Min. etc. Co., 7 Cal. Unrep. 23, 70 P. 470; Hayne on New Trial & Appeal, pp. 428-431.)
The granting of a new trial on the grounds of the insufficiency of the evidence is addressed to the sound legal discretion of the trial court, and unless there be a clear abuse of such discretion the order will not be disturbed on appeal. (Wolfe v. Ridley, 17 Idaho 173, 20 Ann. Cas. 39, 104 P. 1014.)
This court will not disturb the judgment of a trial court because of conflict in the evidence when there is sufficient proof if uncontradicted to sustain it. (Spaulding v. Coeur d'Alene Ry. etc. , 5 Idaho 528, 51 P. 408; Pine v. Callahan, 8 Idaho 684, 71 P. 473; Stuart v. Hauser, 9 Idaho 53, 72 P. 719; Heckman v. Espey, 12 Idaho 755, 88 P. 80; City of Pocatello v. Bass, 15 Idaho 1, 96 P. 120; Hufton v. Hufton, 25 Idaho 96, 136 P. 605; Henry Gold Mining Co. v. Henry, 25 Idaho 333, 137 P. 523; Commercial Trust Co. v. Idaho Brick Co., 25 Idaho 755, 139 P. 1004.)
This action was commenced by appellant corporation to recover upon an instalment note. The cause was tried to a jury, which returned a verdict of no cause of action, and judgment was entered against appellant for costs. This appeal was taken from the judgment, and also from the order denying the motion for new trial. The appeal from the judgment having been dismissed, the cause is here considered upon the appeal from the order overruling the motion for new trial.
The complaint alleges that respondent executed to appellant his note, payable in instalments, and further conditioned that if the payee should deem itself insecure before maturity, it might declare the entire sum immediately due and payable, and that respondent having failed to make payment of the first two instalments, it deemed itself insecure and declared the whole of said note due and payable. The complaint was not verified, and the answer is a general denial and an affirmative plea of part payment. After verdict and judgment for respondent, appellant filed and served its notice of intention to move for a new trial upon the ground of insufficiency of the evidence to justify the verdict, and that the same was against the law, specifying the particulars of such insufficiency.
At the trial, the note was received in evidence without objection, and showed two payments to have been made on the same, totaling less than the first instalment. The witness Taylor, who was the general manager for the appellant company at Rigby, where the note was given, testified that the remainder of the November instalment and all of the December instalment was unpaid, that the respondent had called at the office of the company some time prior to the commencement of the action and declared that he would not pay the note, and if appellant got anything out of him, it would have to bring suit, and otherwise by his demeanor and conversation made it clear that he would refuse to pay said note unless payment was enforced by suit. This testimony relative to the refusal of respondent to pay the remainder of this note, or any part of the same, until compelled to do so by suit, is corroborated by two other witnesses, and is not disputed by respondent, who testified in his own behalf, but confined his testimony in chief to the question of his having been given permission to dispose of a set of harness, which appears to have been one of the articles for which the note in question was given.
The court correctly instructed the jury that the action was to recover a balance which plaintiff claimed to be due on the...
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