McCann v. Gilmore

Grace, J. Appeal from an order of the district court of Pierce county, setting aside a previous order for a hew trial, A. G. Burr, Judge. The original action was brought by McCann to recover damages against defendant for alleged malicious prosecution of a certain criminal action against this plaintiff and respondent. In that action a judgment was entered for plaintiff on the 7th day of March, 1918. Thereafter notice of entry of judgment was served. Thereafter and on March 8, 1918, defendant served notice of motion, and motion fora new trial which was returnable on March 18, 1918, at Rugby, North Dakota. For different causes, the motion was not disposed of by the court until about August 10, 1918, when the court made its order-granting a new trial, which was thereafter and on August 14th filed. On August 7, 1918, an appeal was duly perfected by the defendant from the judgment. August 27, 1918, the court made its order requiring the defendant to show cause why the order granting the motion should not be vacated. This was returnable on September 10th. On the 16th day of September, 1918, the court made its order setting aside-the order granting a new trial and declaring it null and void, and declaring the judgments in the action and other proceedings therein should be and remain the same as if the order granting a new trial had not been made. The sole error assigned on this appeal is that-the court was in error in holding that it had no jurisdiction to grant, defendant’s motion for a new trial and in setting aside and vacating; [122] the order granting said motion for a new trial. The appeal from the judgment was perfected under the erroneous belief that the time for appeal therefrom would expire August 8th instead of September 8, 1918, but in this apj>eal this is of no consequence. Manifestly the court erred in holding that it ivas without jurisdiction to grant a new trial. The motion for the same was made within the proper time, and the court had jurisdiction to grant the motion for a new trial, and it erred in holding it had not. It also erred in setting aside and vacating the order granting the motion for a new trial on the ground that it had no jurisdiction to grant it. It is so manifestly clear that a motion for a new trial and the appeal from the judgment are each separate and independent remedies that it would seem a need-loss waste of time and energy to discuss the subject at any great length. An appeal may be perfected from the judgment without it in any manner interfering or devesting the court of jurisdiction to hear and determine a motion for a new trial, if the same is duly made in the manner .and within time limited by statute for making such motion. A motion for a new trial is an application addressed to the sound discretion of the court, in which application is made upon certain grounds for a reexamination of the facts. If it be granted, the effect is to set aside the verdict and present all issues of fact for re-examination. The granting •of a new trial operates as a matter of law to vacate and set aside the .judgment. It would be an anomalous situation to grant a new trial, thus reinstating the case in the trial court for a retrial on all the issues-■of fact and of law, at the conclusion of which a verdict might be rendered and a valid judgment entered thereon, and still contend that the former judgment is effective. If the motion for a new trial were made and granted prior to the time of entry of judgment, it is apparent no judgment could be entered. If the motion is made and granted after the entry of judgment, thenceforth the judgment is ineffective. Where the judgment has been entered and a motion for a new trial has properly been made, the judgment may be said to be contingent until the disposition of the .motion for a new trial, when, after the new trial is granted, judgment becomes ineffective. If a new trial is denied, the judgment remains •effective unless for other reasons in a proper case it is modified by the trial court or vacated and set aside by it, or unless it is re [123] versed on appeal if an appeal lias been taken. There is abundant authority to sustain the views above expressed. See King v. Hanson, 13 N. D. 93, 99 N. W. 1085. The ease of Spanagel v. Dellinger, 38 Cal. 278, is one which clearly illustrates that an appeal from a judgment and a motion for a new trial are independent remedies. We feel it unnecessary to cite the long list of authority which sustains the same principle expressed in the case last above cited. If the motion for a new trial is made within the time limited by statute, it is an independent remedy. The trial court has judisdiction to grant such motion for any of the causes specified in § 7660 or upon its own motion for the causes set forth in § 7665, Compiled Laws 1913. It may grant such new trial upon a proper motion either after or before the entry of judgment, and is not, after entry of judgment, limited in the scope of its jurisdiction to grant a new trial to the single cause of newly discovered evidence. It retains jurisdiction of the case for the purpose of exercising its discretion in granting or refusing a new trial, and this, though judgment has been entered and an appeal taken therefrom; for the granting of a new trial has the effect to vacate the verdict, and when the verdict is vacated there is nothing to support the judgment; and though, in an appeal from a judgment, an appellate court acquires jurisdiction of the case from the time an appeal is perfected from it, it acquires such jurisdiction subject to the contingency that the judgment may become ineffective by a vacation of the verdict upon which it rests, by the granting of a motion for a new trial where such motion is properly and timely made. The order appealed from is reversed and the case is remanded for further proceeding not inconsistent with this opinion. Appellant is entitled to statutory costs on appeal.