De Vall v. De Vall
| Decision Date | 23 January 1912 |
| Citation | 120 P. 13,60 Or. 493 |
| Parties | DE VALL v. DE VALL. |
| Court | Oregon Supreme Court |
On petition for rehearing. Petition denied.
For former opinion, see 118 P. 843.
The power to grant new trials is in its inception a common-law right. 3 Blackstone (Lewis' Ed.) § 387. Courts of general common-law jurisdiction have inherent power to grant new trials. This power is not taken away by statute, unless the intent to do so is clear. 29 Cyc. 722, and cases there cited. Statutes limiting this power are in derogation of the common law, and such statutes should be strictly construed. Furgeson v. Jones, 17 Or. 204, 20 P. 842, 3 L.R.A. 620, 11 Am.St.Rep. 808.
In our opinion, chapter 8 of title 2, L.O.L., has reference exclusively to motions for new trial made by the parties, and was not intended to restrict the common-law power of the courts in order to correct their own mistakes. The motion practically takes the place of a pleading, and the statute, for the sake of orderly procedure, specifies the time within which the pleading shall be filed, and what it shall contain; but it was not the intention of the lawmakers, in thus regulating the manner in which the parties should carry on their contention before the court, to take away another important power which the court possessed, namely, that of correcting sua sponte its own mistakes. This is the view intimated by Mr. Chief Justice Field, in Duff v. Fisher, 15 Cal. 375. He observes: "It may be and probably is true that the court, whether sitting in equity or on trial of a common-law action, may, of its own motion, set aside the verdict of a jury when it is clearly and palpably against the evidence; but when the court is satisfied with the verdict the parties can only question its correctness by following the course pointed out by the statute." This excerpt clearly draws the distinction between the power of the court derived from the common law and the rights of a party proceeding under the statute. The exercise of the power of the court to correct its own error is a valuable one tending to prevent appeals and reversals, and it should not be construed away where the intent of the Legislature to destroy it is not clearly manifest.
The petition for rehearing is denied.
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Scarth v. Scarth
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