Shuman v. Lesmeister

Eisk, Cb. J. Defendant appeals from an order granting plaintiff’s motion for a new trial. Such motion was based upon tbe minutes of tbe court. After tbe order was granted, defendant’s counsel prepared and caused to be settled, pursuant to law, a statement of case for use on tbe appeal. Tbe specifications of error are as follows: (1) Tbe court erred in considering plaintiff’s motion for a new trial at all; and (2) the court erred in granting plaintiff a new trial upon tbe grounds stated in tbe order for a new trial. We deem tbe first specification without merit. It is predicated upon an alleged unwarranted delay in bringing tbe motion on for bearing, and it is asserted tbat tbe various ex parte orders continuing such bearing from time to time from June, 1914, to January, 1915, and also tbe various ex parte orders continuing tbe stay of proceedings from time to time until a decision could be bad of such motion, were unwarranted because made without any showing of good cause tberefdr, and tbat for these reasons tbe court lost jurisdiction to entertain such motion. It appears from the record, however, tbat respondent is not chargeable witb such delay, and tbat tbe various postponements and extensions were [212] necessitated because — owing to other engagements — the court was unable to entertain the motion for a new trial at an earlier date. In view of this, we cannot hold that respondent lost his right to have such motion considered. But furthermore, the record fails to disclose that any objection whatever was made by appellant to the consideration of such motion, and, manifestly, he cannot urge such objection for the first time in this court. It is true that, in appellant’s brief, counsel states that he orally objected to such consideration, hut he concedes that the record fails to disclose the objection. Such omission is fatal to appellant’s contention under his first specification. Appellant’s second specification of error must also be overruled. While as one of the grounds of the motion for a new trial, plaintiff, as stated, challenged the sufficiency of the evidence to support the verdict, but failed to point out any particulars wherein the evidence thus failed, still in so far as the record discloses no objection whatever was urged by defendant to such practice, and the trial court, notwithstanding such omission, considered and decided the motion. This being true, we do not think appellant is in a position to now urge the point covered by such specification, especially in view of his failure to incorporate in his statement of case the testimony introduced at the trial. It is well settled that every presumption prevails in favor of the correctness of the conclusions reached by the trial court. Also that a stronger case must be made to justify interference on appeal from an order granting a new trial, than where such relief has been denied. And in the absence of a clear showing of an abuse of the sound judicial discretion vested in the trial court, this court will not reverse an order granting or denying a motion for a new trial (Bristol & S. Co. v. Skapple, 17 N. D. 271, 113 N. W. 841; Ross v. Robertson, 12 N. D. 27, 94 N. W. 765), and when a new trial is granted, the order of the lower court will be affirmed if any ground for sustaining it is found in the record. Gooler v. Eidsness, 18 N. D. 338, 121 N. W. 83. When the motion is based upon several grounds the question, on appeal from an order granting a new trial, is not whether the trial judge was warranted in granting it upon a particular ground referred to in the order, but whether, upon the whole record and upon any of the grounds urged, it should have been granted. Davis v. Jacobson, 13 N. D. 430, 101 N. W. 314. - [213] In this connection, it should be noted that error is not specified as to the making of the order generally, but merely as to the granting of a new trial “upon the ground stated in the order for a new trial,” which ground is the alleged insufficiency of the evidence. Appellant directs our attention to § 4, chapter 131, Laws of 1913, and to the case of Feil v. Northwest German Farmers’ Mut. Ins. Co. 28 N. D. 355, 149 N. W. 358, construing the same. That statute, it is true, requires a specification of insufficiency of the evidence to point out wherein the evidence is insufficient; and while, as we stated in the syllabus in the above case, “such statutory rule is . . . designed to inform the court and respondent’s counsel of the particulars relied on as to the alleged insufficiency, and a substantial compliance therewith will be exacted,” we did not there hold that the trial court, as well as counsel for whose benefit the rule was prescribed, could not — if they saw fit — waive a compliance with its terms. Such a waiver will be implied under the record before us. Such rule is not as stringent as the former rule found in § 7058, Rev. Codes 1905, Comp. Laws 1913, § 7655, which provided that “if no such specification is made, the statement shall be disregarded on motion for a new trial and on appeal.” Under such a statute, appellant’s contention might be upheld. There were five other grounds alleged in the motion, but as none are challenged by the specifications of error we will not consider them. In conclusion, it is sufficient to say that, after considering the two specifications urged, we deem them without merit. The order appealed from is affirmed.