Compton v. Northwest Engineering Co.

THOMPSON (R. L.), J.

This is an appeal from an order purporting to grant a new trial after a previous order had been duly made and entered denying plaintiff’s motion for a new trial. The appeal is presented to this court upon a bill of exceptions. It is contended the court was without jurisdiction to change its original order denying a new trial.

The plaintiff lost a hand in operating a drag-line excavating machine. In a suit for damages the complaint alleged that the injury was sustained through the negligence of the defendant Hildebrand, who was engaged in demonstrating the machine as the agent of the appellant Northwest Engineering Company and of the co-defendant Collins-Kay Machinery Company. The cause was tried with a jury. Separate verdicts were rendered. It was held that plaintiff was entitled to take nothing from the appellant Northwestern Engineering Company. The plaintiff was, however, awarded a verdict of $25,000 against the remaining defendants,

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Collins-Kay Machinery Company and Hildebrand. A judgment was entered accordingly on February 16, 1928. In due time the plaintiff served and filed upon the defendant Northwest Engineering Company a notice of intention to move for a new trial. This motion was argued and submitted on March 30th. Three days later the court made and entered an unqualified order that “Plaintiff’s motion for a new trial heretofore submitted is by the court denied.”

Subsequent to the filing of plaintiff’s motion for a new trial, the defendants Collins-Kay Machinery Company and Hildebrand, against whom the judgment for damages was entered, served and filed a separate notice of intention to move for a new trial. On April 10th this last-mentioned motion for a new trial was argued and submitted. The next day the court made and entered the following minute order: “Defendants’ motion for a new trial heretofore submitted is now by the court granted as to all defendants, and (the) order of April 2, 1928, denying plaintiff’s motion for new trial, having been prematurely entered is hereby vacated, and plaintiff’s motion for new trial is hereby granted.”

The court certified that the bill of exceptions “is true and correct

and contains record of all proceedings subsequent to the entry of judgment