Hansen v. Fish

27 Wis. 535 | Wis. | 1871

Lyon, J.

This is an appeal from an order of the circuit court for Columbia county, denying a motion to vacate and set aside a former order of the court, which vacated and set aside the verdict and judgment in the action, and granted a new trial. The facts, so far as it is necessary to state them to present the questions raised by this appeal, are as follows:

The action was tried at the December term, 1869, of that court, and the plaintiff had a verdict. The verdict was returned on the 15th day of that month, and immediately the attorney for the defendants, in the absence of the attorney for the plaintiff, made a motion orally for a new trial upon the minutes of the judge. This motion was not entered in the minutes of the clerk at the time it was made. On the return of the attorney for the plaintiff into court soon after, the judge informed him that such motion had been made. Plowever, the attorney for the plaintiff, understanding that the motion was not to be entertained, remitted a part of the verdict, and procured the judge to sign an order for judgment for the residue thereof. The judge did not understand that such motion was not to be pressed or entertained, and signed the order for judgment inadvertently. The counsel for plaintiff proceeded to give notice of the adjustment of the costs, had the same adjusted, and, on the 22d day of December, perfected the judgment and left the court. On the next day, December 23d, the court, in the due course of business, heard the motion for a new trial made on the 15th, no one appearing thereon for the plaintiff, and after due consideration and on the same day granted the motion.

At the next term of the court the plaintiff moved the court, on due notice, to set aside and vacate the order of December 23d,granting a new trial; and the court denied the motion, and an order was duly entered to that effect. Prom this last mentioned order the plaintiff appeals.

The principal question presented by this appeal is, whether the opposite party is entitled to formal notice of a motion made upon the minutes of the judge to set aside a verdict, or a verdict and judgment, if judgment has been entered, and for a new trial.

Such motions must be made at the same term at which the cause is tried. R. S. ch. 132, sec. 16. “A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.” Sec. 5 of the same chap. This judicial examination of the issues is not by the jury alone. The judge has something to do with it. Hence such examination is not complete when the jury have returned a verdict.

It is then for the judge to say whether they have decided correctly, and if he finds upon “ an examination of the issues ” that they have not, or if he finds that his rulings during the trial have been wrong, on a motion for that purpose founded on his minutes, and made at the same term, he will set aside such erroneous verdict and grant a new trial.

It seems quite clear to my mind, that such mo.tion and the decision thereof is a part of the trial, and is covered by the notice of trial. This is so of all the usual motions which may be made in the progress of a trial, intermediate the verdict and the- judgment, such as motions for stay of proceedings after verdict, and motions for judgment, which may involve to some extent an examination of the issues. I do not understand that there is any law or rule of court which requires notice to be given of such motions when they are made at the same term at which the cause is tried. And I think a motion for a new trial on the minutes of the judge is of the same character. In practice I never knew a formal written notice of such motion to be given. They are usually made orally, decided by the court, and the motion and order granting or denying it entered in the minutes by the clerk. In the ninth circuit it is not the practice to hear argument upon such motions, except in special cases the judge indicates a desire that they be argued. So far as I know, this practice prevails to a greater or less extent throughout the state, and I think has its origin in the generally received opinion of the courts and the bar, that these motions and the decision of them are parts of the trial, and do not require any formal notice to the adverse party, but are covered by the notice of trial. 2 Whittaker’s Pr. 433, is cited in support of the opposite doctrine; but the statement there is simply that where a motion on the judge’s minutes for a new trial is made, “ nothing but a mere notice is necessary,” and that “ an order to show cause would seem to be the more advisable courseand no authorities are there cited on the subject. In fact, this practice is almost obsolete in New York, and the motion, instead of being made at the circuit on the judge’s minutes, is almost invariably made on a case or exceptions to the special or general term. Hence there are no reported cases in that state which aid us in solving the question under consideration.

There can be no doubt of the power of the court to set aside a judgment inadvertently ordered, at the same term at which the judgment was entered; and I have no doubt that the court may exercise that power on its on motion, though perhaps the occasions where it would do so are rare. I do not think that the judgment in this case was any impediment to the action of the circuit court in granting the motion for a new trial.

We find no error in the proceedings of the circuit court, and are therefore of the opinion that the order appealed from should be affirmed.

By the Court. — Order affirmed.