Walker v. Moser
Decision Date | 28 July 1902 |
Docket Number | 1,677. |
Citation | 117 F. 230 |
Parties | WALKER et al. v. MOSER et al. |
Court | U.S. Court of Appeals — Eighth Circuit |
Lionel C. Burr, Charles L. Burr, and E. E. Spencer, for plaintiffs in error.
Jesse L. Root (Matthew Gering, on the brief), for defendants in error.
This action was brought to recover the damages alleged to have been sustained by Emma Walker, widow of Charles Walker deceased, and by Irene Walker, their infant daughter, by the death of said Charles Walker, alleged to have been killed at Ashland, Neb., February 7, 1900, by being thrown from a buggy drawn by horses driven by himself; the misadventure being caused by his intoxication from liquor just previously given and furnished him by defendant John Moser in that defendant's saloon in said Ashland. The action was based upon chapter 50 of the Compiled Statutes of Nebraska, and the bond of said Moser given pursuant to section 6 of that chapter, on which bond the other defendants were sureties. Plaintiffs claimed damages in the sum of $15,000. Defendants answered, admitting the execution of the bond, and that Moser was engaged in the retail liquor traffic at Ashland, and denying the other allegations of the complaint. Trial was had at the October, 1900 general term of the circuit court, and at its close, on October 26, 1900, the verdict of the jury was rendered in favor of the plaintiffs for the sum of $2,250. Afterwards, on November 1, 1900, in the same term, an order was entered by the court in that cause granting leave to the defendants to file a motion for a new trial by November 15, 1900, and such motion in writing, asking for a new trial of said action for specified reasons, was filed on the same day. Afterwards, at the November, 1900, term of said court, and on the 17th day of December, 1900, before disposing of said motion for a new trial, judgment was entered upon said verdict, in favor of the plaintiffs and against the defendants, for the sum of $2,250 damages and the costs of suit. Afterwards, in the same November, 1900, term of said court, on the 12th day of April, 1901, the court upon hearing, entered an order setting aside and vacating said verdict and judgment, and granting a new trial of said cause. Afterwards, at the October, 1901, term of said court on the 11th day of October, 1901, said cause was again tried and a verdict rendered by the jury in favor of the plaintiffs for the sum of $800, upon which judgment was then entered in favor of the plaintiffs and against the defendants for that sum and the costs of suit.
Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District judge.
LOCHREN District Judge, after stating the case as above, .
That an order granting or refusing a new trial rests in the discretion of the trial court, and is not reviewable, has been the uniform holding of the federal courts. It is needless to cite authorities, but many will be found in 1 Desty, Fed.Proc. (9th Ed.) 661.
The argument that the decision of the motion for new trial came too late, because made after the term had ended at which the verdict was rendered, is not sound. A cause, and the parties to it, are before the court until the end of the term at which the final judgment of the court is entered; and the...
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