Cook Coffee Co., Inc. v. Ewell

Supreme Court of New Jersey

Cook Coffee Co., Inc. v. Ewell

24 A.2d 572, 128 N.J.L. 210, 1942 N.J. Sup. Ct. LEXIS 168

CourtSupreme Court of New Jersey

DecidedFebruary 21, 1942

StatusPublished

Cited by1 cases

This text of 24 A.2d 572 (Cook Coffee Co., Inc. v. Ewell) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cook Coffee Co., Inc. v. Ewell, 24 A.2d 572, 128 N.J.L. 210, 1942 N.J. Sup. Ct. LEXIS 168 (N.J. 1942).

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Opinion

The opinion of the court was delivered by

Case, J.

The appeal is from an order, made by Judge Oliphant in the Mercer County Circuit Court, granting, on the defendant’s request, a new trial of the cause which had theretofore been subjected to a jury verdict for.the plaintifE in the amount of $425 and costs.

Por two reasons, either of which is of itself sufficient, the appellant may not prevail.

(1) An appeal lies only from a final judgment, and the order allowing a new trial is not a final judgment. Kople v. Zalon, 122 N. J. L. 422. A finality would eventuate from a judgment resulting from the new trial granted. Gaffney v. Illingsworth, 90 Id. 490.

(2) The general rule is that an application to set aside a verdict and to award a new trial is addressed to the judicial *211 discretion o£ the trial court. An error cannot be urged against such exercise of that discretion. This is subject only to the modification stated by the Court of Errors and Appeals in the recent case of Nelson v. Eastern Air Lines, Inc., et al., 128 N. J. L. 46. The instant case does not come within that exception. A review of the testimony brought the trial judge to the conclusion that the verdict was against the great weight of the evidence and was the result of mistake or prejudice. There i's nothing in this result to shock either reason or justice.

Inasmuch as the order under review is not appealable, the appeal will be dismissed, with costs.

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The opinion of the court was delivered by

Case, J.

The appeal is from an order, made by Judge Oliphant in the Mercer County Circuit Court, granting, on the defendant’s request, a new trial of the cause which had theretofore been subjected to a jury verdict for.the plaintifE in the amount of $425 and costs.

Por two reasons, either of which is of itself sufficient, the appellant may not prevail.

(1) An appeal lies only from a final judgment, and the order allowing a new trial is not a final judgment. Kople v. Zalon, 122 N. J. L. 422. A finality would eventuate from a judgment resulting from the new trial granted. Gaffney v. Illingsworth, 90 Id. 490.

(2) The general rule is that an application to set aside a verdict and to award a new trial is addressed to the judicial *211 discretion o£ the trial court. An error cannot be urged against such exercise of that discretion. This is subject only to the modification stated by the Court of Errors and Appeals in the recent case of Nelson v. Eastern Air Lines, Inc., et al., 128 N. J. L. 46. The instant case does not come within that exception. A review of the testimony brought the trial judge to the conclusion that the verdict was against the great weight of the evidence and was the result of mistake or prejudice. There i's nothing in this result to shock either reason or justice.

Inasmuch as the order under review is not appealable, the appeal will be dismissed, with costs.

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24 A.2d 572, 128 N.J.L. 210, 1942 N.J. Sup. Ct. LEXIS 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-coffee-co-inc-v-ewell-nj-1942.

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