Kurath v. Gove Automobile Co.

Vinje, J. It will be seen from the foregoing statement-of facts that no appeal was taken from the constructive denial of defendant’s motion for a new trial. The appeal from the-judgment necessarily involves the merits of that denial. Billington v. Eastern Wis. R. & L. Co. 137 Wis. 416, 417, 119 N. W. 127. If that constructive denial were the only action, taken in the matter by the trial court on the motion we should have to deem it the exercise of its discretion adversely to the-defendant. Koch v. Wis. P. C. Co. 146 Wis. 267, 131 N. W. 404. But the trial court after the term, believing it had ju [393] risdiction, expressed its views upon tbe merits of tbe case by granting a new trial. Though tbe action tben taken by it ■was void for want of jurisdiction, tbe expression of its opinion upon tbe merits must now be deemed relevant upon tbe question as to tbe correctness of tbe constructive denial of tbe motion. Tbe trial court by granting tbe motion after tbe term clearly indicated that tbe constructive denial was a mistake, and a result not in accord with its views upon tbe merits. Tbis construction of tbe trial court’s attitude towards tbe case is emphasized by its attempt, made in good faitb, to so amend its record as to enable it to grant tbe motion. Sucb attempt was unsuccessful. See State ex rel. Kurath v. Ludwig, 146 Wis. 385, 132 N. W. 130. That fact, however, does not minimize tbe trial court’s lack of belief in tbe merits of plaintiff’s case. In Wilson v. Chippewa Valley E. R. Co. 135 Wis. 18, 114 N. W. 462, 115 N. W. 330, tbe trial court erroneously was of tbe opinion that it bad no power to grant a new trial, and stated that if it bad a new trial would be granted. Tbis court said: “Eor tbis error tbe judgment must be reversed, and as tbe trial court has indicated bis view of tbe matter and wbat be would have done bad be not been, as be supposed, constrained by tbe decision of tbis court to tbe contrary, tbe cause must be remanded for a new trial.” Tbe present case presents a situation where tbe trial court has by an order granting a new trial expressed tbe opinion that justice has not been done. True, sucb expression was made at a time when it was powerless to remedy tbe miscarriage of justice owing to its having allowed tbe term to elapse without acting upon tbe motion, either through forgetfulness or through an erroneous, or perhaps correct, impression that tbe parties waived tbe necessity of tbe motion being decided during tbe term. Under sucb circumstances, if tbe facts in tbe case sustain tbe trial court’s view that justice has not been [394] done, the judgment should he reversed and the cause remanded for a new trial. To do otherwise would he to malee an innocent party suffer through the forgetfulness or misunderstanding of the trial court, or perhaps owing to the fact that a correct understanding did not appear upon the record. A careful perusal of the evidence convinces us, as it did the trial court, that Gaston’s testimony is not only incredible in itself, but is so contradicted by other credible evidence that no verdict ought to be permitted to rest upon it. Without it, plaintiff’s case entirely falls. It would not add to the value of this opinion to state his testimony in detail and point out the many incredible and contradicted parts thereof. By the Court. — Judgment reversed, and cause remanded for a new trial.