6 S.D. 483 | S.D. | 1895
To recover the posession of Certain wheat alleged to be wrongfully detained by defendant, to the immediate possession of which plaintiff avers that he is entitled, this action was brought in claim and delivery, and is based upon a certain chattel mortgage executed by defendant to plaintiff, and a subsequent written agreement between the parties, by which it is claimed defendant voluntarily delivered the wheat in question to plaintiff, for the purpose of having the same sold at private sale, and the proceeds thereof applied upon the mortgage indebtedness. The complaint is in the usual form, and the answer is, in effect, a general denial. Upon the issues thus raised the case was tried'to a jury, and a verdict was returned in favor of plaintiff and against the defendant for a return of the property, or the value thereof, which was found to be $600. This appeal is from an order made by the trial court on the day following the return and entry of said verdict, by which the same was vacated and set aside on the court’s own motion, and on the grounds specified in said order as follows: ‘‘First, that it appears that said verdict was rendered under a plain disregard by the jury of the evidence, or a material part thereof; and, second, that it appears that said verdict w7as rendered under a misapprehension of the instructions of the court.”
Section 5091 of the Compiled Laws provides that “the verdiet of a jury may also be vacated, and a new trial granted by the Court in which the action is pending, on its own motion, without the application of either of the parties, when there has been such plain disregard by the jury of the instructions of the court, or the evidence in the case, as to satisfy the court that the verdict was rendered under a misapprehension of such instructions, or under the influence of passion or prejudice.” It is urged by counsel for appellant that the court was without power to set aside a verdict, on its own motion, the day after the same was received and entered, and that there is nothing in the record to warrant the court in so doing. In order to justify and sustgiq the order appealed from in any event, the jury
In discussing section 5091, the supreme court of North Dakota says: “In this state, and in the late territory, the instances of vacating verdicts and grantingnew trials without application of the parties have been exceedingly rare, and no such summary action should be taken except in cases falling clearly within the statute, and then the order should bé made promptly oncoming in of the verdict.” Gould v. Elevator Co., 50 N. W. 970, 2 N. D. 216. Concerning section 662 of the California Code of Civil [Procedure, which is the same as the statute under consideration, Mr. Hayne, in his work on New Trials and Appeals, at pages 10 and 11, observes that: “With respect to verdicts, the better opinion seems to be that the judge can grant a new trial of his own motion only at the time the verdict is rendered, * * * as the statute .gives the power in those cases only in which the error of the jury is so gross as to, be at once apparent, and requires the court to exercise it as soon as the verdict is rendered. ” The views above expressed regarding the power of the court to vacate a verdict upon its own motion renders any examination of the case upon its merits unnecessary, and as section' 5093 of the Compiled Laws may be broad enough to enable the defendant, upon good cause shown, to procure an order fixing the time within which to make an application for a new trial, or take the necessary preliminary steps thereto, we decline to express an opinion upon any question which might be presented to the court below upon a motion for a new trial. The order from which the appeal was taken is reversed.
