The Burlington & Missouri River Railroad Co. v. Dobson
| Decision Date | 29 April 1885 |
| Citation | 23 N.W. 353,17 Neb. 450 |
| Parties | THE BURLINGTON AND MISSOURI RIVER RAILROAD COMPANY IN NEBRASKA, PLAINTIFF IN ERROR, v. THOMAS DOBSON, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Seward county. Tried below before POST, J., sitting for NORVAL, J.
AFFIRMED.
Marquett & Deweese and R. S. Norval, for plaintiff in error.
William Leese and H. H. Blodgett, for defendant in error.
The original action, out of which the present proceeding has grown, was commenced by the plaintiff in error against defendant in error for the possession of real estate of which defendant in error was then in possession. Such proceedings were had as resulted in a judgment in favor of plaintiff in error. The cause was removed to this court for review, and at the January term, 1882, the judgment of the district court was affirmed. By some oversight no opinion was filed, and the case is not reported. After the return of the mandate to the district court, on the twenty-seventh day of April, 1882, defendant in error, under the provisions of the act then in force known as "An act for the relief of occupying claimants of lands," Compiled Statutes, 1881, 365, filed a request that a jury be impaneled for the purpose of assessing and determining the value of the improvements placed upon the land by him. The order was made and the jury impaneled. On the seventh day of June, 1883, they returned into court a verdict in favor of defendant in error for the sum of $ 465.80. On the eighth day of December, 1883, judgment was rendered on the verdict of the jury in favor of defendant in error for the amount found due him. On the twenty-second day of March, 1884, plaintiff filed its petition in the district court, alleging substantially the above facts and the further facts that, while the jury were upon the land making the necessary examination, they, without the knowledge or consent of plaintiff in error, were taken by the officers having them in charge and by defendant in error to the house of defendant in error, and while there fed, drank, and lodged by defendant in error in his house and with his family during one night, and that during said time and during the deliberations of the jury the defendant in error conversed with each of the jurors concerning the matters upon which they were to decide, etc. It is alleged that by reason of this misconduct upon the part of the jury and the defendant in error the finding of the jury was excessive and much above what it ought and otherwise would have been. Also that plaintiff in error was unable to ascertain the facts alleged until a few days before filing the petition, and that it could not with reasonable diligence have ascertained the facts sooner.
The prayer of the petition is that the judgment and verdict be set aside and a new trial granted.
To this petition a general demurrer was interposed by defendant in error, which was sustained by the district court, and plaintiff in error excepting to the decision of the court declined pleading further, and the petition was dismissed. This ruling of the district court is assigned for error in this court.
The question presented by this record is, whether or not the plaintiff in error by its petition has brought itself within any of the provisions of the statute providing for the granting of new trials. To recapitulate the facts stated in the petition, we observe that on the seventh day of June, 1883, the verdict of the appraisers was filed in court; on the eighth of December of the same year, judgment was rendered, and on the twenty-second day of March, 1884, the petition for a new trial, on the ground of the misconduct of the defendant in error and the jury, was filed.
Section 314 of the civil code provides that new trials may be granted by the court in which a trial was had in the following cases: First. Irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial. Second. Misconduct of the jury or prevailing party. Third. Accident or surprise which ordinary prudence could not have guarded against. Fourth. Excessive damages appearing to have been given under the influence of passion or prejudice. Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon contract, or for the injury or detention of property. Sixth. That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law. Seventh. Newly discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial. Eighth. Error of law occurring at the trial and excepted to by the party making the application.
Section 316 is as follows: "The application for a new trial must be made at the term the verdict, report or decision is rendered, and except for the cause of newly discovered evidence...
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