57 Minn. 443 | Minn. | 1894
Lead Opinion
At the trial of this cause, at the request of defendants’ counsel, the court plainly charged the jury that, if they found a certain fact from the evidence, the defendants could not be held liable upon the note in suit. To this, counsel for plaintiff took no exception, nor was there even a suggestion that it was erroneous. The verdict being for defendants, a motion to set it aside, and for a new trial, was made by plaintiff’s attorneys, on two- grounds,— those specified in 1878, G. S. ch. 66, § 253, subd. 5th and 7th. Subsequently, and, as stated by the court in its order, solely because there was no evidence which warranted that part of the charge referred to above, plaintiff’s motion was granted.
The phrase “contrary to law,” as used in the fifth subdivision, means “contrary to the instructions.” To obtain a new trial upon that ground, it must be made to appear that there was an instruction which was disregarded. It is not enough that a principle of law not embodied in an instruction was disregarded by the jury.
It is apparent that the order cannot be sustained upon the second ground (seventh subdivision), that there was “error in law occurring at the trial, and excepted to by the party making the application;” for, conceding the charge to have been erroneous, plaintiff’s counsel took no exception to it.
A majority of the court are of the opinion that upon the authority of Porter v. Chandler, 27 Minn. 301, (7 N. W. 142;) Barker v. Todd, 37 Minn. 370, (34 N. W. 895;) Bergh v. Sloan, 53 Minn. 116, (54 N. W. 943,) and cases cited, — the order should be reversed; but it has been suggested that when the court has misstated the law in its charge, or has stated propositions of law not applicable to the case, and is of the opinion that the jury was misled thereby, it has the discretion to grant a new trial, although no exception was taken. We admit that to have been the rule at common law. So the question is, has the rule been changed by statute? And it is hardly necessary to say that decisions in the courts of other slates, upon statutes distinctly different from our own, cannot be regarded as applicable. Such, we think, is the case of Emmerich v. Hefferan, 33 Hun, 54, in which 'it was held that section 999, Code Civ. Proc. N. Y., had not declared that the court, at the trial, could not interpose in other cases than those mentioned, and order a new trial, when it might appear to be proper.
Again, by section 1317 of the same Code, it is provided that, on an appeal from a judgment or an order, the court at the general term to which an appeal is taken may reverse or affirm, wholly or partly, or may modify, the judgment or order appealed from, and each interlocutory judgment or intermediate order which it is authorized to review, as specified in the notice of appeal, and as to any or all of the parties, and it may, if necessary or proper, grant a new trial or hearing. Under this provision, unlike anything to be found in our statute, it has been held that on review at the general term the want of an exception at the trial was not necessarily fatal, but that the general term might, in its discretion, reverse for error not saved by exception, because, strictly speaking, it was not exercising appellate jurisdiction. It had all of the discretionary powers of the trial court. See Mandeville v. Marvin,
It has also been suggested that the court below had authority to grant a new trial for errors of law occurring at the trial, and not excepted to, under the first subdivision of section 253, supra, namely, “Irregularity in the proceedings of the court, jury, referee or prevailing party or any order of the court or referee or abuse of discretion by which the moving party was prevented from having a fair trial.” Unfortunately for this contention, the parties making the application in the present case failed to specify the first subdivision as a ground for a new trial, but, as before stated, contented themselves with the grounds covered by subdivisions 5 and 7. Again, if there was anything in this position, we should have a motion for a new trial for errors of law occurring at the trial, but not excepted to, based wholly upon affidavits; for section 254 expressly provides that when the motion is made for any other cause than those mentioned in the fourth, fifth, and seventh subdivisions of section 253, it must be made upon affidavit. An “irregularity” of the court is not an error of law, by any means. Errors in law occur only when there are rulings made on questions of law; and it is very evident that no error of law in giving or refusing instructions can be reviewed, as an “irregularity” of the court, under the first subdivision. Hayne, New Trials, 29, 100.
The majority are of the opinion that, in civil actions, the power of the court to grant new trials is limited to the grounds prescribed in section 253, and that new trials for errors of law can only be granted when an exception has been taken. The statutory grounds for new trials are exclusive. Practically, this has oftentimes been held in this court, especially when considering motions made upon the ground that errors of law had occurred upon the trial, as witness the Minnesota cases before referred to. To permit a defeated party to have the benefit of an error of law not excepted to would be giving to him a great advantage; and here we are asked to go further, and allow to a party who made no objection to the giving of the erroneous instruction, and thereby actually acquiesced in its pertinency and correctness, the benefit of the error. Manifest injustice would be the result, for, had even a
Order reversed.
Dissenting Opinion
I dissent. Where the trial court has misstated the law in his charge, or charged propositions of law not applicable to the case, and he is of the opinion that in fact the jury was misled thereby, it is in his discretion to grant a new trial, though no exception was taken, if, in his opinion, the taking of an exception would not have caused him to change his mind in time to obviate the mistake. In such a case the losing party has no standing at all, as a matter of right. It is merely an application for equitable relief, addressed peculiarly to the discretion of the trial courti
In New York this is carried so far as to hold that, on review at the general term of the rulings of the judge at the trial, the want of an exception is not necessarily fatal, but the general term may, in its discretion, reverse for error not saved by exception, on the ground that it is not, strictly speaking, exercising appellate jurisdiction, but has all the discretionary powers of the trial court. Baylies, New Trials & App. 125; Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506; Mandeville v. Marvin, 30 Hun, 282; Maier v. Homan, 4 Daly, 168; Lattimer v. Hill, 8 Hun, 171; Ackart v. Lansing, 6 Hun, 476.
It is also in the discretion of the trial court to allow an exception after the jury has retired. St. John v. Kidd, 26 Cal. 267. If he has power to allow an exception after the proper time to take it, he has povrer to consider it taken for the purpose of a new trial.
This ground for new trial does not come under 1878, G. S. ch. 66, § 253, subd. 7, “Error in law occurring/ at the trial and excepted to by the party making the application,” but under the first subdivision of that section, “Irregularity in the proceedings of the court, jury, referee or prevailing party or any order of the court or referee or
The discretionary power exercised by the court below in this case is one which a trial court, having due regard for the rights of the prevailing party will seldom exercise. It is only when he is satisfied that in fact the particular mistake produced a wrong result and that the failure to except did not prejudice the prevailing party and where he is satisfied that his rulings would have been the same, and that nothing would have been done by him or the prevailing party in time to obviate the mistake even if an exception had been taken. Even viewed by this strict rule I cannot see that the order granting a new trial was an abuse of discretion, and hold that the order appealed from should be affirmed.
Since the above was written the majority opinion has been rewritten. It is now admitted that at common law it was in the discretion of the trial court to grant a new trial for errors to which no exception was taken, but it is insisted that by the adoption of the Code this discretionary power has been cut off. It has seldom before been held that the discretionary power of a trial court of general jurisdiction has been cut off by the Code. The Code is a mere skeleton, and much of it merely declaratory of the common law. Especially is this true as to its provisions regulating practice. We do not look to it for the discretionary powers of the District Court, as we do to the justice of the peace practice act for the discretionary power of that court. On the contrary, it is not unusual to look to the great sources of authority on common law and equity practice to ascertain what the discretionary powers of our District Court are.
The point is also now made for the first time that the motion for a new trial was not made on the grounds stated in the first subdivision of section 253, but on those stated in the fifth and seventh subdivisions. As to this I will say many able judges, in times past, have often set aside verdicts on their own motion, even before the ink was dry on them, and without any motion or grounds of motion being made or stated by the party at all; and the right to do so has hardly been questioned. At common law the trial court had the power to grant a new trial, no matter how informal the application for it might be, or how much the moving party had waived his technical rights by failing to take the proper exception, or to put the proper
The point is also now made that section 254 provides that when the motion for a new trial is made on the fourth, fifth, and seventh subdivisions of section 253, “it is made either on a bill of exceptions or a statement of the case prepared as prescribed in the next section, for any other cause it is made on affidavit,” and that, therefore, this by necessary implication cuts off the common-law practice, under which the court often acted on its own knowledge of what took place in its presence during the trial, and granted or denied a new trial without regard to whether or not such knowledge was either supported or contradicted by any such affidavits. If this was purely a statutory proceeding, the position of the majority would be correct, but it is not a mere statutory proceeding. The provision that in some cases
But the judge’s powers and the applicant’s rights are, in this respect, very different questions. The moving party not only fails to save his rights for review in the appellate court, by failing to make them appear of record, and to cover them in his grounds of motion, but he also runs the risk of having his motion denied on technical grounds, merely, by the trial court, which it usually will and ought to do. But notwithstanding this, in furtherance of justice, the trial court may relieve him from his laches, by giving him something which he asked for, but was not in a position to demand as of right. And when it affirmatively appears that the court, in granting him a new trial, has, in furtherance of justice, intentionally relieved him from his technical laches and omissions, it is merely a question whether or not, on common-law principles, it has abused its discretion. In this case it seems to me that it has not
(Opinion published 59 N. W. 534.)