Freid v. McGrath , 133 F.2d 350 ( 1942 )

EDGERTON, Associate Justice

(dissenting).

The District Court granted exactly what appellee had asked in her amended motion; a new trial as to the amount of damages. Moreover, the court’s order was in these terms: “The amended motion for a new trial is granted * * Yet the prevailing opinion says that the judge did not grant the amended motion but acted of its own initiative.

I see no basis for saying that the judge did not grant the motion, in the teeth of his statement that he did. There is no logical or legal difficulty in granting for one reason a motion made for another reason.¹ And it seems to me a contradiction in terms to say, when a judge grants a party’s motion, that he nevertheless acts upon his own motion; or, what comes to the same thing, that he acts of his own initiative. If he grants the party’s motion he does not act of his own initiative; and vice versa. Rule 59(d) clearly expresses this dichotomy: “the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party * * * ”²

Since the judge acted on appellee’s motion, his action was timely. To reverse the judgment on the ground that counsel failed to foresee the judge’s mental processes is to add a new, and I think a useless, technicality to the law.

1 Cf. Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037. The rule (Federal Rules of Civil Procedure, rule 7b, 28 U.S.C.A. following section 723c) that a motion shall state the “grounds therefor” does not require the court to deny a motion merely because the court is not impressed by the particular grounds which the motion states.

Moreover, appellee’s motion for a new trial implicitly included an assertion of the very ground on which the judge granted the motion. Although the motion emphasized the idea that the jury’s verdict did not express its actual estimate of the damages, the fact that appellee did not rest content with the verdict showed that she considered it inadequate as well. The idea that it was inadequate did not originate with the judge.

2 Italics supplied.