De Vall v. De Vall

• Decision Date: 14 November 1911
• Citation: 118 P. 843,60 Or. 493
• Parties: DE VALL v. DE VALL.
• Court: Oregon Supreme Court

118 P. 843

60 Or. 493

DE VALL v. DE VALL.

Supreme Court of Oregon

November 14, 1911

Appeal from Circuit Court, Wallowa County; J.W. Knowles, Judge.

Action by Beatrice De Vall against Thomas De Vall. From an order vacating a judgment and granting a new trial, defendant appeals. Affirmed.

See also, 110 P. 705.

This is an action to recover judgment for the sum of $1,008, with interest and costs, upon a decree of the circuit court of the state of Wisconsin. This is the second appeal. For a full statement of the issues, see the same case in 57 Or. 128, 109 P. 755.

Upon the second trial had on November 19, 1910, before a jury verdict was rendered for the defendant, and judgment entered thereon. Thereafter, on the same day, a motion for a new trial was filed by plaintiff upon the following causes: (1) Because the court erred in overruling plaintiff's objection to the reception of any evidence under the answer. (2) Because the court erred in admitting evidence against the objection of plaintiff. (3) Because the court erred in refusing to receive evidence offered by plaintiff upon the trial. (4) Because the verdict was contrary to law. (5) Because the verdict was contrary to the evidence. (6) Because the court erred in refusing to direct a verdict upon the motion of plaintiff to find and bring a verdict for plaintiff.

February 14, 1911, being at the same term of the court, upon consideration of such motion, the court made the following order: "This cause coming on to be heard this day, on the motion of plaintiff, asking that a judgment heretofore rendered herein be set aside and a new trial granted plaintiff appearing by her attorney, Thos. M. Dill, and defendant appearing by his attorney, A.S. Cooley, and the court having carefully considered and weighed all the evidence introduced on the trial of this case, and having considered the entire record herein, including the instructions given to the jurors, and it appearing that among the instructions given by the court to the jury, was the following, 'Upon the other hand, if the defendant has satisfied you by a preponderance of the evidence that said M.C. Porter was not served with said notice on said 24th day of April, 1907, or that renewal of said notice at the October term of said court was not given to the said Porter, then you should find for the defendant,' and the court believing that said instruction was erroneous, under the evidence introduced on the trial of this case, and that said instruction was prejudicial to plaintiff, therefore, because of the giving of said erroneous instruction as above quoted and for no other reason or reasons, it is ordered and adjudged that the judgment heretofore rendered in this case be and the same is hereby set aside, and a new trial is hereby granted." From this order, defendant appealed, under section 548, L.O.L.

A.S. Cooley, for appellant.

Thos. M. Dill (John P. Rusk, on the brief), for respondent.

EAKIN, C.J. (after stating the facts as above).

It thus appears that, although there was a motion to set aside the verdict, the court in its discretion set aside such motion on the ground of error not assigned in it, and the contention of defendant is that the court had no authority to set aside a verdict upon its own motion, nor upon a ground not assigned in the motion. There is no bill of exceptions here, and the defendant does not contend that the instruction mentioned in the order was not erroneous. Therefore the only question to be considered is as to the power of the court to set aside a judgment and grant a new trial, either on its own motion, or upon a ground of error not assigned in the motion. Although there seems to be some conflict of opinion upon this question, the great weight of authority sustains the view that courts of general jurisdiction have inherent power to correct judicial errors for the purpose of promoting impartial administration of justice, and the right of a court to grant a new trial on its own motion is generally recognized. The Oklahoma Supreme Court, in Long v. County Commissioners, 5 Okl. 128, 47 P. 1063, has held directly to the contrary, citing no authority, other than its own statute, the language of which is not materially different from that of other states relating to the granting of new trials. Section 4493, Code of 1903, relating to motions for new trial, provides that "the former verdict *** shall be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party," and then names five causes which may be included in such motion, being identical with those in other states.

The Supreme Court of Texas has held to the same effect in Lloyd v. Brinck et al., 35 Tex. 1. The North Dakota statute expressly authorizes the court on its own motion to vacate a verdict for certain causes which has the effect to preclude the consideration of any others. The statutes of California and South Dakota have similar provisions, and therefore have no application upon this question. On the contrary, the Code of Iowa of 1897, § 3755, provides that "the former verdict *** shall be vacated and a new trial granted on the application of the party aggrieved," etc., being the exact language of the Oklahoma statute.

In Allen v. Wheeler, 54 Iowa, 631, 7 N.W. 113, in considering the power of the court to grant a new trial on its own motion, it is said that this statute "does not provide that the court may not, upon its own motion, and for error which is apparent, set aside a verdict. Such power exists at common law, and we do not understand that any provision of our statute is a limitation to the power of the court on its own motion to compel juries to observe and follow the law as embodied in the instructions given by the court." And in a late case ( Hensley v Davidson Bros. Co., 135 Iowa. 106, 112 N.W. 227) it is said that: "There is no provision in the Code relating to orders of this kind on the court's own motion. That such right exists, however, is indisputable. It is one of the inherent powers of the court essential to the administration of justice." And, after citing many cases to that effect, and quoting from some, the court say: "That a motion therefor, if pending, will not deprive the court of the power to order a new trial on grounds not raised therein. This must necessarily be so, for one of the controlling reasons for the existence of the power is to entitle the court to guard the rights of the parties who, for some cause, have proven unable to protect themselves, and another to enable the court to correct its error, rather than wait for this to be done by the appellate court." To this case there is appended a note in 14 Am. & Eng.Ann.Cas. 65, reviewing the authorities, in which the author says that this power is generally recognized; that the provisions of the statute regulating motions for new trial do not prevent the court from granting a new trial on its own motion. The Minnesota Code of 1905, § 4198, is very similar to that of Iowa and Oklahoma, and in Bank of Willmar v. Lawler, 78 Minn. 136, 80 N.W. 868, it is said: "Appellant contends that, as our statute provides that the notice of motion for a new trial shall be in writing, and shall state the grounds of the motion, the court below had no authority to grant a new trial on its own motion. Under the common-law practice, it was well settled that the trial court could grant a new trial on its own motion. ***...