Weber v. Kirkendall

• Decision Date: 16 April 1895
• Citation: 44 Neb. 766,63 N.W. 35
• Parties: WEBER v. KIRKENDALL ET AL.
• Court: Nebraska Supreme Court

44 Neb. 766

63 N.W. 35

WEBER

v.KIRKENDALL ET AL.

Supreme Court of Nebraska.

April 16, 1895.

Syllabus by the Court.

1. A motion for a new trial is as essential to a review in this court by petition in error, where the judgment or order complained of is based upon findings of the court, as upon the verdict of a jury.

2. Primarily, the office of a motion for a new trial is to afford the court an opportunity to correct errors in its own proceedings without subjecting parties to the expense and inconvenience of appeal or petition in error.

3. The power to correct errors in their own proceedings is inherent in all courts of general jurisdiction, and in the exercise of that discretion they are governed, not alone by this solicitude for the rights of litigants, but also by considerations of justice to themselves as instruments provided for the impartial administration of the law.

4. A stronger case will be required for interference by this court on account of an order setting aside a verdict resulting in a second trial on the merits of a cause than where the motion therefor is denied. Bigler v. Baker, 58 N. W. 1026, 40 Neb. 325.

5. Payments or concessions exacted from the owner of property unlawfully withheld, in order to obtain possession thereof, where the detention is accompanied by immediate hardship or irreparable injury, may be avoided on the ground of compulsion, although not amounting to technical duress. Fitzgerald v. Construction Co. (Neb.) 62 N. W. 899.

6. But one threatened with civil process unaccompanied by any act of hardship or oppression is required to make his defense in the first instance to the merits of the claim, and cannot postpone litigation by paying the demand and afterwards maintain an action therefor.

Error to district court, Douglas county; Hopewell, Judge.

Action by Magnus Weber against Freeman P. Kirkendall and others to recover money paid under duress. Defendants had judgment, and plaintiff brings error. Affirmed.Chas. W. Haller, for plaintiff in error.

Montgomery, Charlton & Hall, for defendants in error.

POST, J.

A judgment of reversal was entered in this court at the January, 1894, term. See 39 Neb. 193, 57 N. W. 1026. But a rehearing was thereafter ordered upon discovering that a material part of the record had been overlooked by us. The essential facts are as follows: At the May, 1890, term of the district court of Douglas county, a trial was had to a jury upon the issues stated in the opinion heretofore filed, resulting in a verdict for the plaintiff in the sum of $813.02, the amount claimed by him, with interest. Afterwards, and within three days, a motion for a new trial was made by the defendants, in which the following grounds were assigned: (1) The verdict is not sustained by sufficient evidence; (2) the verdict is contrary to law; (3) errors of law occurring at the trial, duly excepted to; (4) the court erred in giving certain instructions, to which the defendants excepted; (5) the court erred in refusing to give certain instructions asked by the defendants, to which defendants duly excepted. During the same term, but more than three days subsequent to the finding of the verdict, the defendants were permitted, over the objection of the plaintiff, to amend their motion for a new trial by specifically numbering the instructions referred to in the fourth and fifth specifications thereof. At the September, 1890, term an order was made sustaining the motion for a new trial, and setting aside the verdict for the plaintiff. At the February, 1891, term, the cause, again coming on for trial, was by written stipulation submitted to the court, a jury being waived, on the evidence taken at the previous trial, which had been preserved in the form of a bill of exceptions, duly authenticated by the trial judge. The second trial resulted in a judgment for the defendants, based upon certain findings of fact. The record shows neither a motion for a new trial nor exceptions to the findings of the court, and the errors alleged all relate to the former trial, viz.: “(1) The court erred in permitting the defendants to file the amended motion for a new trial; (2) the court erred in granting a new trial; (3) the court erred in entering said judgment and order.”

It is true an exception was noted to the entering of the judgment on the findings, but that fact alone will not entitle the plaintiff to have said judgment reviewed in this proceeding. A motion for a new trial is just as essential, as the basis of proceedings in error, where the final judgment or order rests upon findings by the court as upon the verdict of a jury. Weitz v. Wolfe, 28 Neb. 500, 44 N. W. 485;Carlow v. C. Aultman & Co., 28 Neb. 672, 44 N. W. 873;Gaughran v. Crosby, 33 Neb. 34, 49 N. W. 776. The plaintiff, from his failure to interpose proper objections thereto, is presumed to have been satisfied with the findings and judgment of the district court. But, assuming what cannot be conceded,--that the regularity of the order setting aside the verdict is presented by this record,--we discover therein no error calling for a reversal of the judgment. It will be assumed, also, for the purpose of this investigation, that the second or amended motion for a new trial was without authority of law, and is in fact a mere nullity. Such being the case, the inference is that the order complained of is based upon the original motion, which, as we have seen, is identical with the second, except that the instructions therein referred to are not specifically numbered. Our investigation is accordingly limited to a single inquiry, viz. were the specifications of the motion sufficient to entitle the defendants...