Sullwold v. Hoger

Decision Date05 September 1961
Docket NumberNo. 7893,7893
Citation110 N.W.2d 457
PartiesRay SULLWOLD, Plaintiff and Respondent, v. Max HOGER, Defendant and Third-Party-Defendant, Appellant, v. Milton WAGNER, Third-Party-Defendant.
CourtNorth Dakota Supreme Court

Syllabus by the Court.

1. An order granting a new trial will not be overruled unless an abuse of discretion clearly appears, or some requirement of law has been disregarded.

2. It is error for the trial court to exercise its discretion in the granting of a new trial when the motion for such new trial is not in conformity with law, and where such defect is duly objected to by the adverse party.

3. For reasons stated in the opinion it is held that it was error to grant a new trial in the instant case.

Jansonius, Fleck, Smith, Mather & Strutz, Bismarck, for plaintiff and respondent.

Conmy, Donahue & Conmy, Bismarck, for defendant and appellant.

LUNDBERG, District Judge.

This is an appeal from an order granting a new trial. The original action was one arising out of an automobile accident. At the trial thereof the jury returned a verdict for the defendant, and on this a judgment of dismissal with costs was entered. The following day the plaintiff made his motion for a new trial on the ground that the verdict was against the weight of the evidence, but giving no particulars and no specifications, and on the further grounds that the jury's verdict had been improperly arrived at, was a compromise and the result of the jury's misapprehension of its duties and powers.

The defendant resisted the motion for a new trial, first on the ground that it was improper and inadmissible to attempt to show what the jury's deliberations had been, when there was no allegation that the verdict had been arrived at by chance or other prohibited means, or that outside influence had been used. The trial court agreed and rejected these grounds. The defendant further contended that the motion was not in conformity with Rule 59(b) and Section 28-1809, 1943 Code, in that it failed to specify, with the required particularity, wherein the evidence was insufficient or wherein the court's instructions had been disregarded; that these were fatal defects (citing cases in a written memorandum) and the motion should accordingly be denied.

The trial court rejected these contentions, vacated the verdict and granted a new trial. The trial court, in a brief memorandum decision, expressed the view that there had been a 'plain disregard * * * of the instructions * * * and of the evidence in the case * * *' by misapprehension of the instructions or because of passion or prejudice. From this order the appeal is taken. As the memo and order above referred to were made more than ten days after the entry of judgment, they cannot be regarded as action taken by the court on its own initiative under Rule 59(i).

In his appeal defendant contends: First, that it was prejudicial error for the trial court to consider the defective motion over his timely objection and to exercise its discretion in granting a new trial. Second, he contends that even if the motion had not been fatally defective for reasons set forth in his objections (referred to above), there was an abuse of discretion in granting the new trial because there was evidence from which the jury could properly find that the driver of the car in which plaintiff was riding, and not the defendant, was responsible for the accident and that such finding could be made in conformity with the court's instructions.

As it is evident that the first of these objections goes to the right of the trial court to act in the matter at all, and would be determinative of the appeal if well taken, we will first examine its validity.

It is well settled that there are certain procedural requirements that must be met by a court when it proceeds to vacate or set aside a verdict or judgment. And it is only natural that this should be so. A case once tried and concluded by a verdict should not be reopened and retried unless careful examination shows that justice so requires. In order that injustice may not be done in the name of doing justice, procedural safeguards have been created to insure that the grounds and reasons for the exercise, by a court, of these exceptional and extraordinary powers be made to appeal, and that the litigant who invokes these powers shows himself entitled to do so. This is true whether the matter be the granting of a new trial, or in directing a verdict, or granting judgment notwithstanding the verdict. Rules 50 and 59, N.D.R.Civ.P., are illustrative of the...

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20 cases
  • Grenz v. Werre
    • United States
    • North Dakota Supreme Court
    • July 13, 1964
    ...have had a fair trial; and hence this case should not be reopened for retrial where, as here, justice does not so require. Sullwold v. Hager, N.D., 110 N.W.2d 457; Benzmiller v. Swanson, N.D., 117 N.W.2d Therefore we conclude that the trial court did not commit any prejudicial error in the ......
  • Minto Grain, LLC v. Tibert
    • United States
    • North Dakota Supreme Court
    • December 17, 2009
    ...an adequate record for appellate review. Schaan, at ¶ 12 (citing Fowler v. Delzer, 177 N.W.2d 756, 762 (N.D.1970); Sullwold v. Hoger, 110 N.W.2d 457, 459 (N.D.1961)). In Sullwold, 110 N.W.2d at 459, this Court explained that the requirement that grounds be specified should not be a "technic......
  • Lindenberg v. Folson
    • United States
    • North Dakota Supreme Court
    • November 30, 1965
    ...N.D., 81 N.W.2d 628; Mills v. Roggensack, N.D., 92 N.W.2d 722; Long v. People's Department Store, N.D., 95 N.W.2d 904; Sullwould v. Hoger, N.D., 110 N.W.2d 457; C. & M., Inc., v. Northern Founders Insurance Company of North Dakota, N.D., 112 N.W.2d 827. It is also well settled that where a ......
  • Muhlhauser v. Archie Campbell Const. Co.
    • United States
    • North Dakota Supreme Court
    • August 9, 1968
    ...new trial on the ground of insufficiency of the evidence is addressed to the sound judicial discretion of the trial court. Sullwold v. Hoger (N.D.), 110 N.W.2d 457; Hamre v. Senger (N.D.), 79 N.W.2d 41; McDermott v. Sway, 78 N.D. 521, 50 N.W.2d 235; Kohlman v. Hyland, 56 N.D. 772, 219 N.W. ......
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