Traxinger v. Minneapolis, St. P. & S. S. M. Ry. Co.
| Decision Date | 06 April 1909 |
| Parties | TRAXINGER v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Campbell County.
Action by Jakob Traxinger against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From an order granting a new trial, defendant appeals. Reversed.Traubman, Williamson & Herried, for appellant.
Frank Alexander and John H. Perry, for respondent.
This cause comes before this court upon an appeal from the order of the circuit court granting plaintiff's motion for vacation of the verdict of the jury and for an order for new trial.
The facts as shown by the record certainly show an anomalous situation, and we doubt if a parallel case could be found. The plaintiff sued for and recovered damages in the trial court. It is admitted by the record that there were errors during the trial, which errors were prejudicial to the defendant. One of said errors, and being the only one in any way preserved in the record, was an instruction given by the trial court to the jury, which instruction was properly excepted to by the defense. It is not claimed by the plaintiff that there was any error whatever committed during the course of the trial which was prejudicial to the plaintiff, and it does not appear that any exceptions were taken throughout the trial by the plaintiff or after the trial to any instructions given the jury. No judgment has ever been entered upon the verdict, which verdict was rendered in October, 1905. The defendant took steps for the obtaining of a bill of exceptions, and in December, 1905, a bill prepared by the defense was duly settled, but the defendant never at any other time took any steps looking to an order to procure a new trial of said case. Before the defendant had even served its proposed bill of exceptions, it would seem that the plaintiff, laboring under the belief that the defense intended to move for a new trial, and undoubtedly believing that the defense were entitled to such new trial, served on the defendant a written consent that the verdict be vacated and a new trial granted. The defendant having taken no steps to procure any order for new trial prior to the 18th day of June, 1906, which was some nine months after the trial, the plaintiff on that date served on defendant's attorneys the following motion and notice, omitting the title and the names of the attorneys: etc. Service of this notice was admitted, and on the return day the defendant filed an affidavit showing: That neither the plaintiff nor the defendant had ever served a notice of intention to move for new trial; nor had the plaintiff ever in any manner prior to June 18, 1906, advised the defendant of any intention to move for new trial; that no papers had ever been served specifying any grounds upon which plaintiff would apply for new trial; that no specifications of error or of insufficiency of evidence had ever been served by plaintiff; and that no notice in any manner had been given reciting the grounds upon which application to set aside the verdict and have a new trial would be made. On the return day the court made an order vacating the verdict and granting a new trial, but in no manner designating the grounds for such order. The defendant duly excepted to said order, and such exception was allowed. The defendant then perfected this appeal from said order. Upon this appeal the plaintiff and respondent in his brief makes the following statements: ...
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