Libby v. Dalton

9 Nev. 23 | Nev. | 1873

Lead Opinion

By the Court,

Belknap, J.:

The defendant was granted a new trial upon the ground of insufficiency of the evidence to justify the verdict. The statement fails to show that it contains all of the evidence. Orders denying motions for new trials made upon'statements failing to expressly show that all of the evidence was before the court have been uniformly affirmed. Such rulings are based upon the presumption that all intendments being in favor of the verdict the omitted evidence would sustain it. It is not the intention of the law that the question of insufficiency of evidence shall be entrusted to the memory of the district judge, but to the statutory statement exemplifying the grounds upon which the motion is made. The statement used upon motion for new trial is brought here, and both courts stand upon the same plane in reviewing the evidence. But granting or denying a motion for a new trial rests in the sound discretion of the nisi prim court and its ruling will not be disturbed where there is any evidence to sustain it. This discretion springs from the opportunity of the district judge to observe the demeanor of the witnesses and to estimate the relative weight to be attached to conflicting testimony.

A new trial should not have been granted unless the statement contains all of the evidence, and we are asked to so assume since all presumptions are in favor of the order of the district court. The supreme court of California, to whose opinions we are referred, has adopted this rule, but not upon such reasoning. It proceeds upon the presumption that unless tbe contrary appears tbe statement does contain all of the evidence. But under a rule of practice long established and repeatedly sanctioned we have held that unless the statement affirmatively appears to contain all, we should assume the existence of other evidence. We must adhere to this rule; its disturbance now, even though it originated in error, would be unwise and tend to confusion.

The order of the district court granting a new trial is reversed.

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Dissenting Opinion

By Hawley, J.,

dissenting:

The rule requiring that statements on motion for new trial must contain all the evidence where a verdict is sought to be reversed upon the ground of ‘ ‘ insufficiency of evidence, ” was established by the appellate court, upon the ground that it was incumbent upon the party seeking the reversal affirmatively to show error, and that, in the event of a failure by appellant to show that the statement contains all the evidence, the appellate court presumes that every fact essential to sustain the judgment or order was fully proven. Sherwood v. Sissa, 5 Nev. 353; Bowker v. Goodwin, 7 Nev. 137.

Adopting the theory upon which this rule is founded, it seems to me, that when the court below grants a new trial, the same presumption follows. The presumption is always in favor of the action of the court below, and the burden of showing error always devolves upon the appellant. It is unnecessary for the respondent in any case to make any showing until the appellant has overcome the legal presumptions in favor of the correctness of the decision rendered against Mm, whether a verdict of the jury or an order of the court. State v. Stanley, 4 Nev. 75; Sherwood v. Sissa, supra.

In the present case it is not claimed that the evidence contained in the statement is not sufficient in law to authorize a new trial, but it is urged that tbe court below had no right to grant a new trial because it is not affirmatively shown by the statement that all the evidence' presented at the trial was contained therein. I am unwilling to agree with this view of the case. I think that if there was any evidence produced at the trial (not included in the statement) tending to show error in the ruling of the court, it was the duty of appellant after the new trial was granted, to have prepared a statement on appeal containing all the evidence. Dickinson v. Van Horn, 9 Cal. 210.

Entertaining these views, I dissent from the opinion of the Court.