Valerius v. Richard , 57 Minn. 443 ( 1894 )

Collins, J.

At the trial of this cause, at the request of defendants’ counsel, the court plainly charged the jury that, if they found a certain fact from the evidence, the defendants could not be held liable upon the note in suit. To this, counsel for plaintiff took no exception, nor was there even a suggestion that it was erroneous. The verdict being for defendants, a motion to set it aside, and for a new trial, was made by plaintiff’s attorneys, on two- grounds,— those specified in 1878, G. S. ch. 66, § 253, subd. 5th and 7th. Subsequently, and, as stated by the court in its order, solely because there was no evidence which warranted that part of the charge referred to above, plaintiff’s motion was granted.

The phrase “contrary to law,” as used in the fifth subdivision, means “contrary to the instructions.” To obtain a new trial upon that ground, it must be made to appear that there was an instruction which was disregarded. It is not enough that a principle of law not embodied in an instruction was disregarded by the jury. Hayne, New Trials, § 99; Hill. New Trials (2d Ed.) 123, 486, and cases cited.

It is apparent that the order cannot be sustained upon the second ground (seventh subdivision), that there was “error in law occurring at the trial, and excepted to by the party making the application;” for, conceding the charge to have been erroneous, plaintiff’s counsel took no exception to it.

A majority of the court are of the opinion that upon the authority of Porter v. Chandler, 27 Minn. 301, (7 N. W. 142;) Barker v. Todd, 37 Minn. 370, (34 N. W. 895;) Bergh v. Sloan, 53 Minn. 116, (54 N. W. 943,) and cases cited, — the order should be reversed; but it has been suggested that when the court has misstated the law in its charge, or has stated propositions of law not applicable to the case, and is of the opinion that the jury was misled thereby, it has the discretion to grant a new trial, although no exception was taken. We admit that to have been the rule at common law. So the question is, has the rule been changed by statute? And it is hardly necessary to say that decisions in the courts of other slates, upon statutes distinctly different from our own, cannot be regarded as applicable. Such, we think, is the case of Emmerich v. Hefferan, 33 Hun, 54, in which 'it was held that section 999, Code Civ. Proc. N. Y., had not declared that the court, at the trial, could not interpose in other cases than those mentioned, and order a new trial, when it might appear to be proper.

Again, by section 1317 of the same Code, it is provided that, on an appeal from a judgment or an order, the court at the general term to which an appeal is taken may reverse or affirm, wholly or partly, or may modify, the judgment or order appealed from, and each interlocutory judgment or intermediate order which it is authorized to review, as specified in the notice of appeal, and as to any or all of the parties, and it may, if necessary or proper, grant a new trial or hearing. Under this provision, unlike anything to be found in our statute, it has been held that on review at the general term the want of an exception at the trial was not necessarily fatal, but that the general term might, in its discretion, reverse for error not saved by exception, because, strictly speaking, it was not exercising appellate jurisdiction. It had all of the discretionary powers of the trial court. See Mandeville v. Marvin, 30 Hun, 282, and cases cited in Baylies, New Trial & App. 125. We fail to see that a construction of sections 999 and 1317 of the New York Code is in point here.

It has also been suggested that the court below had authority to grant a new trial for errors of law occurring at the trial, and not excepted to, under the first subdivision of section 253, supra, namely, “Irregularity in the proceedings of the court, jury, referee or prevailing party or any order of the court or referee or abuse of discretion by which the moving party was prevented from having a fair trial.” Unfortunately for this contention, the parties making the application in the present case failed to specify the first subdivision as a ground for a new trial, but, as before stated, contented themselves with the grounds covered by subdivisions 5 and 7. Again, if there was anything in this position, we should have a motion for a new trial for errors of law occurring at the trial, but not excepted to, based wholly upon affidavits; for section 254 expressly provides that when the motion is made for any other cause than those mentioned in the fourth, fifth, and seventh subdivisions of section 253, it must be made upon affidavit. An “irregularity” of the court is not an error of law, by any means. Errors in law occur only when there are rulings made on questions of law; and it is very evident that no error of law in giving or refusing instructions can be reviewed, as an “irregularity” of the court, under the first subdivision. Hayne, New Trials, 29, 100.

The majority are of the opinion that, in civil actions, the power of the court to grant new trials is limited to the grounds prescribed in section 253, and that new trials for errors of law can only be granted when an exception has been taken. The statutory grounds for new trials are exclusive. Practically, this has oftentimes been held in this court, especially when considering motions made upon the ground that errors of law had occurred upon the trial, as witness the Minnesota cases before referred to. To permit a defeated party to have the benefit of an error of law not excepted to would be giving to him a great advantage; and here we are asked to go further, and allow to a party who made no objection to the giving of the erroneous instruction, and thereby actually acquiesced in its pertinency and correctness, the benefit of the error. Manifest injustice would be the result, for, had even a suggestion been made that the court was not justified in this part of the charge, we have no doubt prompt correction would have followed. Our construction of the statute has been placed upon others substantially the same. See Hayne, New Trials, ch. 1, § 7; Id. ch. 16.

Order reversed.

Buck, J., absent, sick, took no part.