Schraer v. Stefan

50 N.W. 778, 80 Wis. 653, 1891 Wisc. LEXIS 259

• Court: Wisconsin Supreme Court
• Decided: December 15, 1891
• Status: Published

Opinion

LyoN, J.

We are aware of no rule of law which requires the circuit court to specify, in an order setting aside a verdict and granting a new trial, the grounds upon which it is made, although it is the better practice to do so. This court has affirmed many such orders which contained no statement of the reasons which prompted the court to grant them. McLimans v. Lancaster, 57 Wis. 297; Mullen v. Reinig, 68 Wis. 408; Warner v. Michelstetter, 77 Wis. 674. No one would think of attempting to compel .the trial judge to specify his reasons for any other ruling made during the progress of a cause, as, for instance, in sustaining or overruling a demurrer, striking out pleadings or portions of them, admitting or rejecting testimony, giving or refusing instructions proposed by a party, and the like. No reason is suggested why the court should be required to state his reasons for granting a new trial which are not equally applicable to an order respecting any of the above matters. We conclude that it was not error to deny plaintiff’s motion for a modification of the order so that the reasons for making it shall appear therein.

As to the imposition of terms, the general rule is that a new trial should be granted only on the terms that the moving party pay the costs of the former trial. Cases in which the verdict is perverse or entirely unsupported by evidence, or in which the court has misdirected the jury as to the law of the case, are exceptions to the above rule. Pound v. Roan, 45 Wis. 129; Smith v. Lander, 48 Wis. 587; Schweickhart v. Stuewe, 75 Wis. 157. The fact that the circuit court refused to state the grounds upon which the new trial was granted raises the presumption, nothing to the contrary appearing in the record, that the new trial was granted in the exercise of its discretion, because the court disapproved the verdict. Presumably the court thought the verdict was against the weight of evidence. In such case the court should have imposed terms, and the refusal to do so is error.

A motion was made on behalf of defendant to strike off the bill of exceptions and to dismiss the appeal, because of certain alleged irregularities in settling the bill. Certainly no good reason is shown for dismissing the appeal, and the alleged irregularities of practice are not material in the determination of the appeal, for the result would be the same were there no bill of exceptions. The motion must therefore be denied.

By the Court.— Both of the orders appealed from are reversed, and the cause will be remanded with directions to the circuit court to grant a new trial on the terms that defendant pay the costs of the former trial.