Frank v. Ruzicka

WHITING, J. [i] In this action there were verdict and' judgment for plaintiff. Defendant gave notice of intention to move for new trial specifying therein all the caused for granting new trial known to our statute (section 2555, R. C. 1919), except “accident or surprise,” and giving notice that the motion would be based on the files, settled record, and affidavits. Nearly ten months thereafter defendant served his motion for new trial and attached thereto a notice of motion to be allowed to amend his notice of intention. The grounds upon which the motion to amend would be based were not set forth in the notice nor in’any affidavit therewith served; but it appears that, when the motion was heard, an affidavit was filed which affidavit set forth the ground upon which such motion was based. Plaintiff objected to the consideration of the motion for new trial because “the stay of proceedings * * * had expired and no extension had been asked,” and because “no showing ¡had been made to the court why permission should be given to file such amended notice.” The amendment to the notice of intention was allowed. This amendment gave notice that the motion would be based on the minutes of the court as well as [52] upon the files, affidavit, and settled record. Inasmuch as there had, at that time, been no record settled, it left the motion for new trial, so far as resting upon insufficiency of evidence and errors of law occurring at the trial, based upon the minutes of the court, and limited to' the grounds contained in the specifications found in such amended notice of intention. As there were no specifications of the particular errors of law upon which defendant relied, we must assume that the trial court disregarded this ground. Section 2557, R. C. 1919. This motion for new trial was granted, and, from the order granting same, this appeal was taken. [2, 3] 'We find in appellant’s brief 17 so called “assignments of error,” accompanied by a statement to the effect that they were his “specifications of error,” and as such- “served and filed with a .transcript of the testimony herein.” There seems to be a misconception on the part of appellant’s counsel of the nature and purpose of specifications of error under our statutes and rules of procedure. The offijce of a specification of error, in connection with a motion for new trial, is to point out an alleged error of which the moving party complains and upon which he seeks a new trial; and it also establishes a basis upon which to determine what part or parts of the transcript should be contained in the settled record, in case a record should ever be settled. It therefore must precede, and never follow, the hearing of the motion for new trial, and will always be found either in the notice of intention, where the motion is based on the minutes of the court, or in the settled record, where the motion is based on such record. The specification of errors herein were therefore the specifications containd in the notice of intention; and it was such of those specifications as bore upon the ground upon which the trial court based its order granting the new trial, and not any specification to be prepared by the appellant, that should have been the guide for the parties and the trial court in determining what should be contained in the settled record. These specifications presenting the grounds upon which the trial court granted the motion for new trial should be set forth in the printed record; but they are not the appellant’s specifications, and the only “assignment of error” to be contained in the brief ■ of appellant in order to give this court jurisdiction to review the action of the trial court is an [53] assignment to the effect that the trial court erred in granting a new trial. Such assignment will 'be considered in connection with the specifications upon which the trial court acted. [4, 5] Appellant 'contends that the trial court was without jurisdiction to grant the new trial because of the matters set forth in his objections to the granting of the motion for new trial, which objections we have quoted above. There is no merit in this contention. A person does not lose a right to move for a new trial simply because there is no stay of proceedings or because a stay granted has expired. A stay of proceedings is quite a different thing from an order fixing or extending time within which to move for new trial. There is nothing in the record to show but that the motion was made in due time; and the affidavit presented' in connection with the motion to amend the notice of intention presented a sufficient ground both for an order excusing delay in making the motion, if there had 'been delay, and for the order allowing the amendment of the notice of intention. The plaintiff, through no error or neglect on his part, had not been able to procure a transcript of the evidence, and, in order to move for a new trial before the judgment became final, he was compelled to move on the minutes of the court instead of upon a settled record. [6] Appellant contends that the order granting the new trial “is fatally defective * * * in that it does not specify upon what ground a new trial was granted.” Rule 30 governing trial courts of record provides: “The trial court, when granting a motion for new trial, shall, in its order, specify each and every ground upon which it bases such order; all grounds urged upon such motion and not specified in the order shall 'be deemed to have been overruled by the trial court.” The order before us in no manner, directly or indirectly, advises us of the ground upon which it is based. It purports to grant the motion, and yet, under the above rule, we would be bound to treat every ground of the motion as overruled. The record before- us clearly discloses the importance — even the necessity — of this rule. 'Without it, both the litigants, and, in case of appeal, this court, are entirely at. sea as to the views of the trial court. It may well be that in this very case the trial court [54] deemed but one ground .for the motion well founded. An earnest endeavor on the part of trial courts to comply with this rule by setting forth those grounds, and only those grounds, upon which their actions are 'based, will save litigants much needless expense and will both promote and expedite justice. If the trial court in fact based its order on insufficiency of evidence, the record on appeal needed to contain none of the affidavits presented in support of other grounds. If the order was based on misconduct of the jury and had so recited, appellant would have been saved the expense of a transcript of the evidence, the trouble of procuring a settled record, and much of the work and expense of preparing his brief. [7] Undoubtedly the trial court was of the opinion that respondent was entitled to a new trial, and great injustice might be done respondent if this court, because of the failure of the trial court to comply with the above-mentioned rule, should reverse the order appealed' from. We shall therefore assume that the omission on the part of the trial court was the result of inadvertence; and we shall retain jurisdiction herein and shall issue an order directing the trial court to issue, nunc pro tunc, as of the date of its former order, a new order wherein it shall specify the ground or grounds of such order. When such order has been entered it will be transmitted to this court and replace the defective order. [8] One of the grounds upon which the new trial was sought was, as above noted, insufficiency of the evidence to support the verdict. 'Appellant, in his so-called “assignments of error,” states that the notice of intention did not sufficiently specify the particulars wherein the moving party claimed said evidence to be insufficient; hut he does not contend but that there were sufficient specifications of particulars in the amended notice of intention. He does claim that such specifications are “wholly incorrect” in that there was, in the several particulars specified, no insufficiency of evidence to support the verdict. Under this record there would be presented the question of the sufficiency of the evidence to support the verdict; but this question could not be reviewed in this court, unless the printed record contained an abstract of the evidence together with a statement that such abstract contains all the evidence material to the questions presented [55] by the appeal. The printed record now before us contains no abstract of the testimony given. It is therefore clear that, if the order granting a new trial was. based on insufficiency of the evidence, the appellant must of necessity prepare a new brief, and may need to in any case. He will be given 30 days after the filing in this court of the new order in which to serve and file new briefs if he desires so to do. 'Respondent shall pay to appellant as terms for right to be heard in this court the sum of $50. If same is not paid within 30 days from service on him of this court’s order herein, his brief, now on file in this court, will be .stricken from the files. If such terms are paid and appellant shall serve and file a new brief herein, respondent, if he so desires, may, within 30 days after service of appellant’s brief, serve and file a new brief. McCOY, J., takes noapart herein.