23 S.D. 90 | S.D. | 1909
This cause comes before this court upon an appeal from the order of the circuit court granting plaintiff’s motion for vacation of the verdict of the jury-^and for an order for new trial.
The facts as shown by the record certainly show an anomalous situation, and we doubt if a parallel case could be found. The plaintiff sued for and recovered damages in the trial court. It is admitted by the record that there were errors during the trial, which errors were prejudicial to the defendant. One of said errors, and being the only one in any way preserved in the record, was an instruction given by the trial court to the jury, which instruction was properly excepted to by the defense. It is not claimed by the plaintiff that there was any error whatever committed during the course of the trial which was prejudicial to the plaintiff, and it does not appear that any exceptions were taken throughout the trial by the plaintiff or, after the trial to any instructions given the jury. No judgment has ever been entered upon the verdict, which verdict was rendered in October, 1905. The defendant took steps for the obtaining of a bill of exceptions, and in December, 1905, a bill prepared by the defense was duly settled, but the defendant never at any other time took any steps looking to an ordei to procure a new trial of said case. Before the defendant had even served its proposed bill of exceptions, it would seem that the plaintiff, laboring under the belief that the defense intended to move for a new trial, and undoubtedly believing that the defense were entitled to such new trial, seryed on the defendant a written consent that the verdict be vacated and a new trial granted. The defendant having jaleen no steps to procure any order for new trial prior to the 18th day of June, 1906, which was some nine months after the trial, the plaintiff on that date served on defendant’s attorneys the following motion and notice, omitting the title and the names of the attorneys: “Take notice: That the said plaintiff moves the court to set aside the verdict in the above
It is clear that the trial court had no authority to vacate the verdict, under section 304, Code Civ. Proc., after the lapse of nine months. Parrott v. City of Hot Springs, 9 S. D. 202, 68 N. W.
As above mentioned, the only error claimed by plaintiff. was an -instruction which appears in the record, and which it is admitted was favorable to the plaintiff and clearly prejudicial to the rights of the defendant. The only attempt anywhere at a specification of error is the recitation in the notice of motion that said new-trial would be asked for “by reason of error in the instructions of the court.” It is therefore apparent that if proper notice of intention to move for new trial had been served, and other steps properly taken, including a clear specification of the error relied upon, the pnly error relied upon would have been an error favorable to the plaintiff, and which it is admitted that plaintiff never reserved an exception to. And as subdivision 7 of section 301 is the only subdvision under which it could be claimed that plaintiff was moving, it is clear that plaintiff would not have been entitled to a new trial, as under this subdivision it is only errors excepted to by the party making the application fpr new trial upon which such party can rely.
For the reasons (hereinbefore stated, the trial court had no right or authority under the statute to grant the motion for new trial; but, regardless of all questions hereinbefore considered, such order should not have been made. If this had been a case •yhere there had been error during the course of the trial apparently prejudicial to the plaintiff and duly excepted to, and the plaintiff had properly preserved the exceptions in the bill of exceptions duly settled containing proper specifications of errors, and plaintiff had given notice of intention to move for new trial, and afterwards had duly moved for such new trial, clearly specifying at the time in so far as necessary the grounds for such motion, and at the same time had come into court and in open court or in writing had ad
It is therefore the order of this court that the order of the circuit court granting a new trial herein be reversed.