39 Minn. 83 | Minn. | 1888
On a trial before a jury the plaintiffs had a verdict. The defendant then prepared, and procured to be settled by the judge of the trial court, a statement of the case, and upon it moved for a new trial, upon a notice not specifying any ground of motion. The court granted a new trial, and from the order this appeal is taken. After the return was made to this court, the respondent discovered that neither in the settled case nor in the judge’s certificate of settlement is there any statement that the ease as settled contains all the evidence given on the trial, and therefore its counsel moved this court for an order sending the return back to the district court, with leave to respondent to apply to the trial judge to correct the certificate by inserting a statement that the case as settled contains all the evidence, the return thereupon to be sent again to this court. The motion was granted, and the certificate was so amended. The power of this court to make that order, and the authority of the judge to amend the certificate pursuant to it, are denied by appellants. Undoubtedly, after a return to this court, the judge of the court below cannot, unless required by order of this court,
But really it is, so far as this case is concerned, of no practical importance whether we consider the appeal on the record as it stood before the certificate to the statement of the case was corrected or as it stands since. The presumption, where the settled case does not show that it contains all the evidence, that there was evidence enough (though it may not be in the settled case) to sustain the verdict, is based on the presumption in favor of the regularity of the proceedings of the court below brought here for review. The party alleging error in the judgment or order appealed from must show it by the record. If the appeal be from an order refusing to grant a new trial after a verdict, he must show by the record that the verdict ought not to stand. If he claim that there was not evidence enough to base a verdict upon, he must show what the evidence was, and the settled case must contain all the evidence; otherwise this court cannot say it did not make a proper case for the jury. If the appeal be from an order granting a new trial, the record must show that it ought not to have been granted. If granted for insufficiency of the evidence, the settled case should contain it all; otherwise how can we say the preponderance, on the whole evidence, in favor of the verdict, was so manifest and clear that the court below abused a sound judicial discretion in setting it aside ? Of necessity, considerable latitude must be allowed to the trial court in granting or refusing a motion for a new trial made on the evidence. There are things occurring during the trial, under its observation, that cannot go upon the record, proper for it to consider on such a motion; such as the general course and conduct of the trial, the demeanor of the parties and jury, and the appearance and manner of testifying of the witnesses. It was for this reason
One of the assignments of error is based on the fact that the notice of motion for a new trial did not state on what ground the motion was made. Undoubtedly, the notice ought to state the ground of motion, and, if it do not, the opposing party may object to the hearing of the motion, and it would be error in the court to overrule the objection. If, however, notwithstanding the defect in the notice, or if, without any notice, the parties, without objection, go on and submit the motion, it cannot be assigned here as error. A party cannot assign as error what he assented to below. It appears from the memorandum which the court below filed with the order that the new trial was granted for insufficiency of evidence.
A question is made as to the rule of liability to be applied to a boom company in respect to logs coming within its territorial jurisdiction, the plaintiffs insisting that it should be the same as is applied to a common carrier; the defendant, that it certainly ought not to be greater than is applied to a warehouseman. The rule applied by the court below was that the defendant was liable only for loss caused
There is a further question in the case, not, perhaps, necessary to
Upon an examination of the evidence, in view of these rules of law, we do not find such a preponderance in favor of the verdict as to justify us in reversing the order granting a new trial.
Order affirmed.