W. L. Huffman Automobile Company v. Moline Plow Company

• Decision Date: 15 May 1923
• Docket Number: 22397
• Citation: 193 N.W. 747,110 Neb. 279
• Parties: W. L. HUFFMAN AUTOMOBILE COMPANY, APPELLANT, v. MOLINE PLOW COMPANY ET AL., APPELLEES
• Court: Nebraska Supreme Court

193 N.W. 747

110 Neb. 279

W. L. HUFFMAN AUTOMOBILE COMPANY, APPELLANT, v. MOLINE PLOW COMPANY ET AL., APPELLEES

No. 22397

Supreme Court of Nebraska

May 15, 1923

APPEAL from the district court for Douglas county: L. B. DAY, JUDGE. Appeal dismissed.

APPEAL DISMISSED.

John O Yeiser and John O. Yeiser, Jr., for appellant.

Nolan & Woodland and Stout, Rose, Wells & Martin, contra.

Heard before MORRISSEY, C. J., LETTON, ROSE and DEAN, JJ., BEGLEY District Judge.

OPINION

LETTON, J.

A judgment of dismissal was rendered in this case on June 8 1921. A transcript and praecipe for appeal were filed in this court on October 3, 1921, nearly four months after the judgment. A motion for a new trial was filed in the district court on June 10 and overruled on July 5, 1921. The praecipe on appeal recites: "This appeal is from a judgment rendered in the district court of Douglas county, Nebraska on the 5th day of July, 1921." There is no bill of exceptions. The record shows that a jury was impaneled, and the opening statements of counsel made. Defendants then objected to the introduction of evidence. The court sustained the objections, "for the reason that the petition of plaintiff does not state a cause of action." The jury was discharged, and the action dismissed. A motion for a new trial was filed June 10, alleging that the court erred in sustaining the motion of each defendant to direct a verdict, and that the court erred in dismissing the plaintiff's petition. Since no verdict was directed, the first two grounds fail, so that the sole error alleged is that the court erred in dismissing the plaintiff's petition.

Section 8825, Comp. St. 1922, defines "new trial" as follows: "A new trial is a reexamination in the same court of an issue of fact after a verdict by a jury, report of a referee, or a decision by the court."

In Horton v. State, 60 Neb. 701, 84 N.W. 87, paragraphs 6 and 7 of the syllabus are as follows:

"6. A motion for a new trial is proper only where there has been a trial of an issue of fact on the pleadings.

"7. A final judgment based upon a pleading defective in substance may be reviewed without a motion for a new trial having been filed and ruled upon."

In that case a peremptory writ of mandamus was allowed by the district court against a corporation and its officers, without notice to the respondents, and in their absence. Counsel for the relators contended that the judgment was not subject to review because the errors committed were not brought to the notice of the district court by a motion for a new trial. The court say: "Upon this point it is, we think, sufficient to say that there was no trial or semblance of a trial. The petition, which, in the absence of an alternative writ, must be regarded as a pleading, was considered and held to state facts sufficient to entitle the relators to the relief demanded. The question decided was one of law and not of fact. A motion for a new trial is proper only where there has been a trial of an issue of fact on the pleadings."

In Claflin v. American Nat. Bank, 46 Neb. 884, 65 N.W. 1056, it is said: "Rulings which do not pertain to the trial in such a sense as to make them assignable as causes for a new trial, such as rulings upon demurrers, motions addressed to pleadings, and motions to dismiss, need not be called to the attention of the trial court by motion for a new trial."

In Bennett v. Otto, 68 Neb. 652, 94 N.W. 807, where the question involved was to be decided by the record, the court say: "Here there was a mere examination of the record presented, and a motion for a new trial could have alleged nothing except that the court erred in deciding the matter incorrectly upon the record."

In First Nat. Bank v. Sutton Mercantile Co., 77 Neb 596, 110 N.W. 306. the third paragraph of the syllabus is: "Where a judgment at law is rendered on the pleadings alone, a motion for a new trial is not necessary to obtain a review in this court." In the same case it is said: "A new trial is a reexamination in the same court of an issue of fact after a verdict by a jury, report of a referee, or a decision by the court (Code, sec. 314); and a motion for a new trial is a motion for such reexamination. The judgment was rendered without an examination of any of the issues of fact, consequently there could be no reexamination of any such issues, and it would be absurd to hold that the defendant was required to ask what the court could not possibly grant. Bannard v. Duncan, 65 Neb. 179, 90 N.W. 947. The judgment involved a mere construction of the pleadings, and in such a case no ...