O'Malley v. Carrick

KERRIGAN, J.

The plaintiff having recovered a verdict against the defendants as administrator and administratrix of the estate of Catherine Ross, deceased, the defendant James Garrick served and filed a notice of intention to move for a new trial. His codefendant, being satisfied with the verdict, did not join in the motion. The motion was granted, and the plaintiff appeals from the trial court’s order thereon.

The first ground urged in support of the appeal is that the trial court was without jurisdiction to entertain the motion for a new trial for the reason that the moving party’s codefendant was not served with the notice thereof. In making this point it is admitted by the appellant that it is only those parties to the action or proceeding whose interest would be adversely affected by the granting of the motion for a new trial who need be served with the notice thereof; but he argues that the interest of said Catherine Nicholson would be so adversely affected, for the reason that she, being an administratrix of the estate of the deceased, had the right, if she were satisfied with the correctness of the verdict, to insist that it be not disturbed; and that if the verdict were set aside and a new trial granted it might result in incurring further expenses against the estate.

We think it obvious, however, that this possible expense to the estate is not sufficient upon which to predicate injury to Catherine Nicholson, as administratrix, should the motion be granted. The interest, to be injuriously affected, must be

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an interest which is concerned in the litigation. Her interest in this action was as administratrix of an estate against which a verdict had been rendered. If as the result of the motion the verdict should be set aside the immediate result would be beneficial to her interest as administratrix rather than adverse, and this without regard to the fact that she might personally entertain the opinion that the verdict was just. She was not in this litigation actively supporting the plaintiff, or opposing her codefendant. She was simply quiescent, allowing her' codefendant to bear the brunt of the plaintiff’s attack. While in her answer she admitted the allegations of the complaint to be true, she did not join with the plaintiff in asking for the relief claimed. Under these circumstances her interest in the litigation would not have been injuriously affected by the granting of a new trial.