15 Or. 89 | Or. | 1887
This is an appeal from an order of the Circuit Court of Multnomah County granting a new trial, and also from the order of said court, overruling appellant’s motion for judgment on the verdict.
It is the third appeal in this cause. The ruling of this court on the first appeal is reported in 13 Or. 156; on the second appeal in 13 Pac. Rep. 193, to which reference is made for a fuller statement of the facts.
On the present appeal, two questions have been argued, and are presented for our consideration: 1st, "Whether or not an appeal will lie to this from an order of the lower court, granting a new trial; and 2d, whether the defendants’ motion for a new trial was pending before said court at the time the same was allowed. These questions I will now consider in the order stated. The right to an appeal depends entirely upon the statute. If the statute does not confer it, it does not exist. (In re Goldsmith, 12 Or. 414; Kearney v. Snodgrass, 12 Or. 311; Town of La Fayette v. Clark, 9 Or. 225.)
Order granting a neto trial not appealable. The appellant relies upon section 525 of the Civil Code, which is as follows: “ A judgment or decree may be reviewed as prescribed in this title, and not otherwise. An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein, or a final order affecting- a substantial right, and made in a proceeding, after judgment or
It is claimed on the part of the appellant that the order of the court, granting a new trial and setting aside the verdict, is au order affecting a substantial right, and which in effect determines the action or suit, so as to prevent a judgment or decree therein.
It was held by this court in Kearney v. Snodgrass, 12 Or. 311, “that an order granting a new trial does not affect a substantial right”; nor do I think it is one which in effect determines the action or suit, so as to prevent a judgment or decree therein. The action is still pending and undetermined in the court below. The plaintiff, if he saw proper, might bring the same on for trial there, and recover such sum as might be awarded him upon the trial.
This statement of the case seems sufficient to show that the order in question has not determined the action so as to prevent a judgment therein. This construction is in accordance with that given a similar statute in Artman v. West Point Manuf. Co. 16 Neb. 572. The court there said: “By the terms of the statutes above quoted, the order sought to be reviewed must not only be an order affecting a substantial right, but it must be one which in effect terminates the action and prevents a judgment. The order in question does not do this. By this statute there are two classes of orders which may be reviewed by this court. One is where the order affects a substantial right in an action, and in effect determines the action, and the other is an order affecting a substantial right in a special proceeding.It is quite clear that an order granting a new trial during the term in which the verdict of a jury is returned cannot be said to belong to the second class of orders mentioned in the section above quoted, and it is equally obvious that it must be classed with the first. If that be true, we fail to see how it can be treated as a final order, or one which determines the action. A final order is one which disposes of the cause either by sending it out of the court before a hearing is had on the merits, or after a hearing on the merits, either granting or refusing the relief demanded by the
■ In Freeman on Judgments, section 34, it is said: “ The general
The respondents submitted a motion to dismiss the appeal in this cause, which was argued and submitted by direction of the court in connection with the other questions presented for our consideration. I think, therefore, that the motion to dismiss the appeal ought to be sustained.
A motion for a new trial not waived, by motion for judgment non obstante. But this would leave undetermined the main question involved and presented on the appeal, and that is, whether or not, as a matter of law, the defendants* motion for a new trial was pending in the court below on the eighteenth day of December, 1886. It is conceded that if said motion was then pending before that court, whatever ruling the court made thereon is not reviewable on this appeal, for the reason it was a matter resting on the sound discretion of the trial court.
I therefore think proper to indicate the conclusions I have reached on that subject. A brief reference to the facts is necessary to a proper understanding of this question. The verdict was rendered on the twenty-first day of May, 1886; the defendants* motion to set it aside and grant a new trial was duly filed on the twenty-second day of May, 1886; on the same day the defendants also filed a motion for judgment non obstante verdieto. On the first day of June, 1886, the plaintiff filed a motion for judgment on the verdict. On the twenty-sixth day of May, 1886, it appears from the record that upon the agreement of counsel for the plaintiff and defendants respectively, made in open court, it was ordered that the motions for a new trial, and for judgment for defendants, notwithstanding the verdict, and the plaintiff’s motion for judgment on the verdict, be and they were set for hearing on Tuesday, the first day of June, 1886, at nine o’clock A. M., and if the court shall not then be in session, shall be heard on Wednesday, the second day of June, 1886, at the
On the thirtieth day of June, 1886, the court made an order allowing the defendants’ motion for judgment notwithstanding the verdict, and thereupon entered a final judgment in favor of the defendants, for their costs and disbursements, taxed at $292.98. The record is entirely silent as to what disposition was made of the plaintiff’s motion for judgment on the verdict, and the defendants’ motion for a new trial.
From this judgment the plaintiff appealed to this court, and at the last term thereof, the same was reversed and the cause remanded for further proceedings in the court below. (13 Pac. Pep. 193.) On the twelfth day of November, 1886, the mandate from this court was duly filed in the court below, and on the twenty-ninth day of November, 1886, said cause came on to be heard on the plaintiff’s motion for judgment on the verdict, which motion was opposed by the defendants’ counsel, on the ground that the defendants’ motion for a new trial was still pending and undisposed of, and asked that the same be heard and determined, to which counsel for the plaintiff objected for the reason: 1st, That said motion for a new trial has been determined by the court; 2d, that said motion had been waived by the defendants; 3d, that said motion had been withdrawn within the meaning of the statute governing motions for new trials; 4th, that the time for presenting a motion for a new ti'ial had expired; and 5th, that the court had no power or jurisdiction to hear or determine the said motion for a new trial.
Upon these objections the court reversed its decision and heard counsel for the respective parties, and thereafter, on the eighteenth day of December, 1886, overruled each of said objections. The court also at the same time overruled the plaintiff’s motion for judgment on the verdict, and allowed the defendants’ motion to set said verdict aside, and granted a new trial, to each of which
“ Section 233. A motion for a new trial, with the affidavits, if any, in support thereof, shall be filed within one day after giving the verdict or other determination sought to be set aside. When the adverse party is entitled to oppose the motion by counter-affidavits, he shall file the same within one day after the filing of the motion. The motion shall be heard and determined during the term, unless the court continua tine same for advisement or want of time to hear it. ’yVNen not so heard and determined, or continued, it shall be deemed withdrawn, and may be disregarded.” , '
Section 262 of the Civil Code prescribes the time within which judgment shall.’be entered, and is as follows:—
“Section 262. When judgment is given in any of the cases mentioned.' in sections 260 and 261, unless otherwise ordered by the copirt, it shall be entered by the clerk within the day it is given, except that, as in this section hereafter provided, when a trial by this court has been had, judgment shall be entered by the' clerk, in conformity with the decision, within two days from the time the same is filed; or if the trial be by jury, judgment shall be given by the court in conformity therewith, and entered Toy the clerk within two days from the time the verdict has been received, and in either case, within the term at which such judgment is given: 1st, When the court is in doubt what judgment Jought to be given, it may order the question to be reserved for Ifurther argument or consideration; the entry of judgment shall ■be delayed until judgment be given; 2d, when within the time Billowed to file a motion for a new trial, either party shall file a Inotion for a particular judgment, or for a judgment, notwithstanding the verdict or decision; or, 3d, when the motion for a liew trial is filed within the time prescribed, the entry of judgment shall be thereby delayed.”
■ The question presented for our consideration is one of practice, depending entirely upon the construction of our own Code
The defendants’ motion for a new trial, and for judgment notwithstanding the verdict, were made at the same time, were argued together without objection, and both were taken under advisement by the court by the same order.
The defendants after that had no further duty to perform to - preserve their rights. "Their cause was fully submitted to the court, and if thereafter anj’- enror was committed, it was the error of the court and not the defendants. It has been argued / that by sustaining the defendants’ motion .for jiff.gment, both"** the motion for a new trial and for judgment on the verdict were necessarily overruled by implication. If this position were conceded, it would also follow that when that, judgment was reversed for error, all of the consequences Avhich necessarily followed its rendition were also cut off and defeated, au,d the effect of the reversal would be to re-instate the record just' as it was before the error was committed. Under the peculiar* .circumstances of this case, I do not think we ought to hold that the defendants’ motion for a new trial was either waved or withdrawn. The court did continue the motion for advisement, and at the end of the term made an order continuing over until the next term all matters that were undisposed of. (Gomer v. Chaffee, 5 Colo. 383; Wade on Notices, § 1202.) Furtheij under subdivision 3 of section 262, supra, the entry of judg ment was delayed, by the filing of the motion for a new trial until the motion is disposed of. It is very doubtful whether cl not the trial court has the power to render a judgment in anl case, while a motion for a new trial is pending and undisposcj of. The plain duty of the court was first to dispose of til motion for a new trial, and then the record would be clear f| the entry of such other order or judgment as might be propd” It is evident, from the entire record, that the action of the coult
Let an order be entered dismissing the appeal.