Eades v. Trowbridge

COOPER, C.

This action was brought to recover possession of thirteen cows, two yearlings, and three calves, or the value thereof, in case a delivery cannot be had, with damages. The case was tried with a jury, and at the close of the testimony the case was submitted and the jury returned a verdict for defendants. Thereupon the court, in the presence of the jury, on the twenty-third day of March, 1901, on its own motion, made an order vacating and setting aside the verdict, and on the twenty-fifth day of March, 1901, made an order setting the ease down for retrial on- the thirtieth day of April, 1901. The ease comes here on a bill of exceptions for the purpose of reviewing the action of the court below in vacating said verdict.

The trial court is authorized by section 662 of the Code of Civil Procedure to vacate the verdict of the jury and grant a new trial on its own motion, “when there has been such a plain disregard by the jury of the instructions of the court, or the evidence in the ease, as to satisfy the court that the verdict was rendered under a misapprehension of such instructions, or under the influence of passion or prejudice.” The only power conferred upon the court to vacate and set aside a verdict of its own motion is that found in the ahovequoted section. In all other cases it must be made upon notice served upon the adverse party within ten days after the verdict. This notice must designate the grounds upon which the motion will be made, and whether the same will be made upon affidavits, the minutes of the court, a bill of exceptions, or a statement of the case. It may be made upon

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the grounds, among others, of misconduct of the jury, errors of law, or insufficiency of the evidence. If made upon affidavits, a bill of exceptions, or a statement of the ease, the moving party must serve a copy of such affidavits, bill of exceptions, or statement upon the adverse party, who is allowed time to file counter-affidavits, or to propose amendments to the bill of exceptions or statement. If the motion is made on the minutes of the court, where the ground is the insufficiency of the evidence to justify the verdict, the notice of motion must specify the particulars in which the evidence is alleged to be insufficient; or if the ground is errors of law, the notice must specify the particular error upon which the moving, party will rely. The motion is brought on for hearing after notice, and after full opportunity to the adverse party to meet the contentions of the moving party. (Code Civ. Proc., sees. 657, 658, 659, 660.) Thus the ordinary and usual method of vacating the verdict of the jury and obtaining a new trial is upon motion and notice as contemplated by the sections last cited. The adverse party is given the right to be heard, which involves the right to get the facts properly before the court, and to aid and assist the court by argument and authority on questions of law. The plan is to allow all parties to be heard before any adverse decision is given, to allow the court full opportunity for deliberation, so that no hasty or inadvertent ruling may be made. The regular machinery provided is designed to apply to each and every case, and furnishes a method whereby the motion may be heard upon its merits for the purpose of doing justice to all and injustice to none. After the above and last-cited sections comes section 662, which contains the quoted clause herein-before given, and authorizes the verdict to be vacated by the court of its own motion. This section is an exception to the general plan contemplated by the preceding sections. The court in this case, in setting the verdict aside, did so upon the alleged ground, as stated in its order, that “the verdict is in violation of the instructions and contrary to the evidence.”