Schmidt v. Potter

184 N.W. 357, 44 S.D. 526, 1921 S.D. LEXIS 155

• Court: South Dakota Supreme Court
• Decided: September 16, 1921
• Docket: File No. 4890
• Status: Published

Opinion

GATES, J.

The trial of this cause was had to the court and jury and resulted in verdict and judgment for plaintiff. Upon the motion of defendants the court granted a new trial “for the reasons urged in the motion for new trial and for the further reason that the court is of the opinion that in the interests of justice a new.trial should be granted.” Rule 30 of the Rules for Trial -Courts of Record (40 S. D. preliminary page 29) provides:

“The trial court, when granting a motion for new trial, shall, in its order, specify each and every ground upon which it bases such order; all grounds urged upon such motion and not specified in the order shall be deemed to have been overruled by the trial court.”

- The sole assignment of error is that the trial court erred in granting a new trial because “the opinion of the trial court that a new trial should be granted in the ‘interests of justice’ is not a ground for granting a new -trial.” As the 'basis for this assignfent it is argued that, because the trial court did not “specify each and every ground upon which it based its order,” it must be inferred that the court denied each and every ground specified as -error upon the motion for new trial. While the form of the order does not comply with the spirit of the rule and is not to be commended, we can only infer that the trial court granted the motion for all of the reasons urged upon the motion for new trial as well as in the interest of justice. It is therefore unimportant to the determination of this appeal whether the trial court had or had not power to grant a new trial solely “in the interests of justice.”

The order granting a new trial is affirmed.

SMITH and McCOY, J'J., not sitting.