198 P. 227 | Nev. | 1921
By the Court,
On May 12, 1920, the district court rendered judgment in this case in favor of appellant.
Respondent noticed his intention to move for a new trial, assigning in said notice several statutory grounds. Thereafter respondent filed a paper indorsed “Statement in Lieu of Memo of Errors” containing the following :
“Comes now the defendant above named, by its*101 attorneys, and says: That in its notice of intention to move for a new trial, heretofore filed in said above-entitled action, one of the grounds named, and upon which defendant chiefly relies, is the ground as stated in section 5320, R. L. Nevada 1912, to wit: ‘Error in law occurring at the trial and excepted to by the party making the application.’ That the records in said case, and particularly the stenographer’s report of the evidence, has [have] all been destroyed, and that therefore defendant is without any means or information with which to prepare, serve, and file, as required by law, its memorandum of errors upon which said defendant chiefly relies on its said ‘Notice of Intention to Move for a New Trial.’ ”■
Thereafter, on motion of respondent, the court made the following order, granting a new trial:
“It is hereby ordered that the motion of the defendant heretofore made for a new trial of the above-entitled action be, and the same is hereby, granted, and that a new trial of the issues in the above-entitled action be had, on the grounds that the stenographic notes of the oflicial stenographer who reported the proceedings upon the trial of said action have been destroyed by fire, and the defendant is therefore deprived of the use and benefit of the same, with which to prepare, serve, and file its memo of errors herein.”
The action of the trial court in awarding a new trial for this cause is assigned as error by appellant.
In support thereof it is urged: (1) That the reason given by the court for awarding a new trial is not included in the grounds enumerated in the statute for granting a new trial, and that such grounds are exclusive; and (2) that no showing whatever is made that a proper record -could not have been made by respondent upon which to base its motion for a new trial, notwithstanding the loss of the stenographer’s notes.
This court in Scott v. Haines, 4 Nev. 426, speaking of the authority of courts to grant a new trial, said:
“Without saying that this section embraces all cases in which a district court may grant a new trial, it may be safely said that a verdict or other decision ‘cannot be set aside where no irregularity or error whatever is shown, and the verdict or decision is in accordance with and justified by the evidence.’ The court in such case has no more right to set aside a verdict or decision than it has to render a judgment without pursuing the forms prescribed by law. Error in some respects, or injustice in the result, alone authorizes an interference with a judgment or decree once rendered.”
The court in its opinion cites 20 R. C. L. 288, where the rule is stated that, it seems to be well established as a general rule, where a party has lost the benefit of his exceptions from causes beyond his control, a new trial is properly awarded, although it has been held otherwise in a few jurisdictions. Conceding this to be the general rule in those states where the statutory grounds for a new trial are not exclusive, still it does not appear in this case that the respondent has lost the benefit of his exceptions through the destruction of the reporter’s notes. The most that has been shown is that the notes have been destroyed.
In Richardson v. State, 15 Wyo. 465, 89 Pac. 1027,12 Ann. Cas. 1048, cited and discussed by the trial court, in which an order denying a new trial was reversed because a portion of the evidence, objections, and rulings of the court thereon, and exceptions, together with the depositions of witnesses read upon the trial, had been lost by the reporter who took down the shorthand notes
As stated in the note to the last citation:
“This rule presupposes that there is no means available to appellant of restoring the record. Where such means are available, he is, of course, bound to avail himself of them.”
Even though we grant, for the purposes of this decision, that the trial court was not limited in its j urisdiction by the grounds enumerated in the statute, it was without authority to order a new trial upon the mere fact of the destruction of the reporter’s notes.
The order granting a new trial is reversed.