Estate of Gerhardus

BELT, J. Did the court have power to make the order in question? If not, our labor is at an end; if so, we must determine whether such power was rightfully exercised. It is well established in this jurisdiction that the trial court has the inherent power to alter, modify or reverse any order, judgment, or decree during the term at which it was made. Hudelson v. Sanders-Swafford Co. et al., 111 Or. 600 (227 Pac. 310), citing many decisions of this court. In a few jurisdictions it is held that an order erroneously denying a motion for a new trial can be corrected only on appeal, but such rule does not appear to us as being in keeping with the due administration of justice, nor is it in keeping with the decided weight of authority. Lookabaugh v. Cooper, 5 Okl. 102 (48 Pac. 99), is cited by appellant in support of his contention, but that case was expressly overruled in Barnes v. Bruce, 63 Okl. 270 (165 Pac. 405), wherein the court said: “Ah the rule announced in Lookabaugh v. Cooper is contrary to that contained in the opinion in Todd v. Orr and Philip Carey Co. v. Vickers, supra, and, further, is unsound in principle and opposed to the great weight of authority, the same is expressly overruled.” It may be argued that, while the order granting a new trial was dated during the term, *117 it did not in any event become effective until it was entered, which, it appears from the clerk’s entry, was on the second day of the next judicial term. For some purposes a judgment or order is of no effect until the same shall have been entered by the clerk (see cases collated in note to Weber v. Mayer (N. D.), 28 L. R. A. 621), but the rule does not obtain in the instant case. The court acted during term, even though the record of what.it did was not made until after the term had expired. There is a marked distinction between the rendition and entry of a judgment or order. One is the judicial act of the court, while the other is the ministerial act of the clerk: 15 R. C. L. 578. This is not a matter involving the right of a third party nor does it pertain to the right of appeal or perfecting a lien. "We hold that the court had the power to grant a new trial and that such power was exercised during the term. Did the court ^have the right to grant a new trial? The first ground for new trial, viz., accident and surprise occasioned by witness for claimant testifying’ as above stated, may well be disregarded for the obvious reason that no motion for continuance was made. It will not do to speculate on the outcome of the trial and then ask for another hearing on account of having been surprised by testimony given: Manning v. Gregoire, 97 Or. 395 (191 Pac. 657, 192 Pac. 406). There is nothing in the record to indicate that the verdict of the jury was due to passion or prejudice. The contention that the evidence was insufficient to justify the verdict is untenable in the light of State v. Evans, 98 Or. 215 (192 Pac. 1062, 193 Pac. 927). *118 The sufficiency of the evidence is a matter that should have been raised during the course of the trial by motion for nonsuit or directed verdict. Furthermore, Section 3a, Article VII, of the Constitution of Oregon precludes us from considering the weight of the evidence submitted to the jury. It is not now a question of the sufficiency of the evidence, but rather one as to whether there is any evidence to support the verdict. The most serious claim for, new trial is on the ground of newly discovered evidence. The law applicable thereto is well considered by Mr. Justice Harris in State v. Evans, supra, and need not be restated. The affidavits in support of the motion are lengthy, and it would unnecessarily prolong this opinion to discuss the facts averred therein. The trial court was of opinion that justice would be best subserved by granting a new trial; and, in view of the record, we cannot say there was a manifest abuse of discretion in doing so: Barclay v. Oregon-Washington Co., 75 Or. 559 (147 Pac. 541). The order of the lower court in setting aside the verdict and judgment is therefore affirmed. Affirmed. McBride, C. J., and Bean and Brown, JJ., concur.