Scott v. Ford
97 P. 99
Or.
1908
Check Treatment

Opinion by

Mr. Commissioner King.

1. The main questions for decision involve the right of the trial court upon its own motion, and after a motion for judgment is filed, to set aside its findings of fact and conclusions of law and grant a new trial, a determination of which becomes necessary only in the event that defendant has been prejudiced, making it important first to ascertain whether, if the course pursued by the court had not been adopted, defendant’s *294motion should have been allowed. The proceedings were instituted to recover funds erroneously paid to defendant, and plaintiffs’ right of recovery depended upon whether the moneys were paid to her through a mistake of law or a mistake of fact. This question is clearly and fully determined in an able opinion by Mr. Justice WOLVERTON on the former appeal herein; and the conclusion there reached was to the effect that money honestly paid in ignorance or forgetfulness of facts under a clearly proved mistake as to the truth may be recovered, but not if the mistake is one of law with knowledge of all the facts and without deceit or undue influence.

2. As the case stood at the time the new trial was ordered the Illinois statute had not been pleaded-, in the absence of which it became necessary for the court to presume that the common law relative to the disposition of estates was in force and governed the distribution thereof in that State. Cressey v. Tatom, 9 Or. 541; Goodwin v. Morris, 9 Or. 322. These authorities disclose it to have been the settled rule in this' State, that the court will hot take judicial knowledge of the statutes of other states or territories.

3. And unless something appears in the record to the contrary, we must presume that the common-law rule- prevails there.

4. Under the common law the will took effect at the death of the testator, unless its language, by a fair construction, indicates otherwise, and the legacy or bequest provided therein did not become vested until that time. Gerrish v. Hinman, 8 Or. 348; Morse v. Macrum, 22 Or. 229 (29 Pac. 615: 30 Pac. 73) ; Canfield v. Bostwisk, 21 Conn. 550, 553.

5. When the legatee dies before the testator, the legacy lapses and falls into the body of the estate, and is not payable to his executor or administrator. 2 Redfield, Wills, 157; 18 Am. & Eng. Enc. Law (2d ed.), 748.

*2956. Since the findings of the court disclosed that Hosea Stephens, defendant’s father, died long before the execution of the will or of the codicil thereto, of which plain-' tiffs had knowledge at the time of their payment of the money involved to defendant, and the presumption under the issues being'that the common law was in force and effect in Illinois at the time of the probation of the will and of the payment to • defendant of the moneys involved, the defendant was not entitled to share in the Sturtevant estate. The oversight in paying the money to her was, therefore, disclosed to be a mistake of law, and not of fact, by reason of which plaintiffs were not entitled to recover; and defendant’s motion for judgment should have been allowed. But as a result of the court’s action in ordering a new trial the complaint was amended, pleading the statute of Illinois, which provides that notwithstanding the devisee may die before the testator, leaving lineal descendants, such descendants shall take the estate which a person as such devisee would have done in case he had survived the testator, thereby entitling the plaintiffs, under the new issues and proofs submitted, to recover, and impairing defendant’s rights accordingly.

7. We are then confronted with the question whether the court under our statute and practice has the discretionary power upon its own motion to grant or direct a new trial after having made and filed its findings. Our Code provides: “The order of proceedings on a trial by the court shall be the same as provided in trials by jury. The finding of the court upon the facts shall be deemed a verdict, and may be set aside in the same manner and for the same reasons, as far as applicable, and a new trial granted.” Section 159, B. & C. Comp. And it has been held that “findings made by a court upon the facts in an action tried before it without the intervention of a jury are deemed a verdict. * *” Reade v. Pacific Supply Ass’n, 40 Or. 60, 65 (66 Pac. 443) ; *296Ferguson v. Reiger, 43 Or. 505, 508 (73 Pac. 1040). The clear wording of the statute, as well as the interpretation thereof by the authorities last cited, make it necessary to ascertain the legal status of the parties and right of the court to adopt the course pursued, under the same rule as if the cause had been tried before a jury and a motion for judgment upon' its verdict in defendant’s favor were pending. Section 174 of the Code specifies the manner in which a “verdict or other decision may be set aside and a new trial granted,” and expressly provides that it may be granted “on the motion of the party aggrieved.” The language used appears to be very clear and explicit and is not susceptible of any other interpretation than there expressed; and in view of the well-known rule that the expression of one thing excludes another, so often applied in ascertaining the intent and purpose of legislative enactments (19 Cyc. 27), we are unable to understand by what authority the court .can, upon its own motion, and without a request or suggestion from either of the contending parties, set aside its findings or verdict, and order a new trial, much less when the. only purpose disclosed by the record is to permit one of the litigants to apply to the court for permission to amend a pleading.

8. In referring to this rule of construction in 19 Cyc. 26, it is announced that “whenever a statute limits a thing to be done in a particular form, it necessarily includes in itself a negative, viz., that the .thing shall not be done otherwise.” This principle is so fundamental and so well understood that it requires no argument to enforce it; the question being whether it applies to the acts under consideration.

9. Analogous to the case at hand is Long v. Board of Commissioners, 5 Okl. 128 (47 Pac. 1063), except in that case the order directing a new trial was made after the entry of a judgment in favor of the plaintiif; by which order the judgment was set aside and the cause *297continued for the term, and plaintiff appealed. No motion was filed in the cause by either party thereto, nor was any application made to the court asking that the proceedings be set aside; and, like the case at bar, nothing appeared of record showing the grounds upon which the order was made. The' court in considering the question calls attention to the fact that the statute nowhere in express terms authorizes the court to set aside the judgment upon its own motion, and that the manner and causes for doing so are there specified, the effect of which was to limit the court in its powers to the manner and time there provided. Mr. Justice Tarsney there observes: “When the order in this cause was made, there was no motion for a new trial pending before the court. No such motion was ever made by either party, nor was a new trial sought or requested by either party at any time prior to the granting of the order. The parties to the cause were not before the court for any purpose. The Code affords ample facilities for moving for a new trial, and sets out plainly what shall be done as preliminary to the granting of such motion. This order, we think, was clearly erroneous, and cannot be sustained without making a precedent which would tend to unsettle and confuse the law and the practice regulating and granting of new trials in the trial court; and would be extremely dangerous as liable to be used to prejudice the substantial rights of parties litigant.” See, also Lloyd v. Brinck, 35 Tex. 1. “A new trial,” says our Code (Section 173), “is a reexamination of an issue of fact in the same court after a trial and decision or verdict by a court or jury.” This language would indicate that the cause is by the statute deemed tried when the verdict or findings is filed. It can, therefore, make no difference, so far as the principles involved are concerned, whether the court orders a new trial after verdict and' before judgment, or after entry of judgment; for, in the absence of a discovery *298that the court has been imposed upon in some manner by fraud, or by collusion of the parties, or otherwise, or of some showing which under the statute may entitle the affected party to a new trial, the court is bound to enter judgment in accordance with the law applicable to the facts found by it. The statutes of North Dakota expressly authorize the court on its own motion to set aside a verdict and grant a new trial; and the Supreme Court of that State held it to be reversible error for the court on its own motion to vacate a verdict and grant a new trial after plaintiff had moved for judgment thereon; and, in passing upon the question, say: “The order is clearly erroneous, and cannot be sustained without making a precedent which would tend to unsettle and confuse the law and the practice regulating the granting of new trials in the court below.” And, after discussing the case fully and. noting that “no case is cited or known to this court ■ which lends the least countenance to such practice,” adds: “In this State, and in the late territory, the instances of vacating verdicts and granting new 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 be made promptly on coming in of the verdict.” Gould v. Duluth & Dakota E. Co., 2 N. D. 216 (50 N. W. 969). To the same effect is the holding and observations of the court in Clement v. Barnes, 6 S. D. 483 (61 N. W. 1126) ; Townley v. Adams, 118 Cal. 382 (50 Pac. 550). Under the common law the court could set aside a verdict and order a. new trial upon its own motion. The King v. Holt, 5 T. R. (Eng.) 436, 438; 14 Enc. Pleadings and Practice 932; Weber v. Kirkendall, 44 Neb. 766 (63 N. W. 35). And the adjudications as to the extent to which they might go in that respect were not harmonious, making a statute on the subject essential to a uniform system of practice, which was its evident purpose and *299intent. To be effective as such, it must therefore be exclusive, but it would be impossible to give effect to its terms if the courts are to be at liberty to disregard the manner of proceeding there pointed out. It may be that the statute was not intended to change the common-law practice of permitting the court on its own motion to set aside the proceedings had before it, where it appears that it has been imposed upon in an ex parte proceeding or the verdict entered through improper or collusive agreements, etc., and that the court would have the power essential to its protection and that of the public under such circumstances (State ex rel. v. Adams, 84 Mo. 310, 316) ; but that question is not involved here.

10. There is nothing in the record to indicate any emergency calling for any extraordinary action on the part of the court. The cause had been twice tried, and had been once before this court on appeal, reversed, and a new trial ordered. There is no indication of any advantage having been taken or surprise of any kind, and, so far as appears in the record, the parties to the action were not complaining of any proceedings had, and the only object inferable from the record was to permit plaintiffs, if they chose to do so, to apply to the court for permission to amend • the complaint. Much discretion has been recognized in permitting amendments, but we know of no authority sustaining the court’s discretion to the extent of setting aside the proceedings for the purpose of giving either party permission to apply to the court for that privilege. Again, the.right to amend after trial is impliedly inhibited by the statute. Section 102, B. & C. Comp. Much stronger, then, is the reason for not upholding the action of the court in setting aside a verdict and granting a new trial for that purpose.

11. It is argued by plaintiffs’ counsel that defendant’s motion to strike out a part of the findings gave the court jurisdiction to adopt the course pursued, for the reason *300that the motion for a new trial is the only one recognized by the Code; but whether correct in that view is unnecessary to decide, for it was clearly not a motion for a new trial any more than would have been a motion to amend the verdict, as to which the courts have gone a great distance without granting a new trial. Osborne v. Altschul, 35 C. C. A. 354 (93 Fed. 381).

12. It is next insisted that defendant’s remedy was by mandamus to compel the court to enter a judgment on the findings made at the second trial, and that, having answered in the third trial, she waived and abandoned her right to insist upon her motion for judgment. But, whatever may be the rule elsewhere, the course pursued is in harmony with the usual practice in this State and so recognized. Section 548, B. & C. Comp.; Hoover v. King, 43 Or. 281 (72 Pac. 880: 65 L. R. A. 790: 99 Am. St. Rep. 754) ; Brownell v. Salem F. Mills Co., 48 Or. 525 (87 Pac. 770).

We think it clear that the method adopted by the court was without authority and prejudicial to defendant; and under the rule announced in Pacific Lumber Co. v. Prescott, 40 Or. 374, 388 (67 Pac. 207, 416), the judgment should be reversed and the cause remanded, with directions to sustain defendant’s motion for judgment.