§ 25-1144 — New trial; motion; form

Nebraska § 25-1144

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

The application for
a new trial shall be by motion, upon
written grounds, filed at the time of making the motion. It shall be sufficient,
however, in assigning the grounds of the motion to assign the same in the
language of the statute and without further or other particularity. The causes
enumerated in subdivisions
(2), (3), and (7) of section 25-1142 shall be sustained by affidavits
showing their truth and
may be controverted by affidavits.

Legislative History

Source: R.S.1867, Code § 317, p. 477; R.S.1913, § 7885; C.S.1922, § 8827; C.S.1929, § 20-1144; R.S.1943, § 25-1144; Laws 2009, LB35, § 9. Annotations: 1. Necessity 2. Form 3. Miscellaneous 1. Necessity Provisions of this statute as to application for new trial are mandatory. Weideman v. Peterson's Estate, 129 Neb. 74, 261 N.W. 150 (1935); Douglas County v. Barker Co., 125 Neb. 253, 249 N.W. 607 (1933); Weber v. Allen, 121 Neb. 833, 238 N.W. 740 (1931). Provisions are mandatory. Carmack v. Erdenberger, 77 Neb. 592, 110 N.W. 315 (1906). Motion is not necessary to raise question of sufficiency of pleading to support judgment. Farris v. State ex rel. Murphy, 46 Neb. 857, 65 N.W. 890 (1896). Court may set aside verdict on its own motion. Weber v. Kirkendall, 44 Neb. 766, 63 N.W. 35 (1895). Motion is not necessary to obtain review of equity cases. Swansen v. Swansen, 12 Neb. 210, 10 N.W. 713 (1881). 2. Form A written motion for new trial specifying ground thereof is mandatory for review of errors of law occurring at the trial of a law action or the sufficiency of the evidence. Parker v. Christensen, 192 Neb. 117, 219 N.W.2d 235 (1974). It is sufficient to state ground for new trial in language of statute. Johnston Grain Co. v. Tridle, 175 Neb. 859, 124 N.W.2d 463 (1963); State v. Kubik, 159 Neb. 509, 67 N.W.2d 755 (1954); Harsche v. Czyz, 157 Neb. 699, 61 N.W.2d 265 (1953); Lund v. Holbrook, 153 Neb. 706, 46 N.W.2d 130 (1951); McCullough v. Omaha Coliseum Corporation, 144 Neb. 92, 12 N.W.2d 639 (1944); Chicago, B. & Q. R. R. Co. v. Cass County, 51 Neb. 369, 70 N.W. 955 (1897). Claim of newly discovered evidence must be sustained by affidavit. Powell v. Van Donselaar, 160 Neb. 21, 68 N.W.2d 894 (1955). Assignment of error in motion for new trial that court erred in giving or refusal to give a group of instructions will be considered only to the extent of ascertaining if any one of instructions should have been given or refused. Anderson v. Nebraska Defense Corporation, 146 Neb. 466, 20 N.W.2d 322 (1946). When codefendants join in a motion for a new trial, errors assigned which are not good as to all defendants are not good as to any. Thomas v. Fundum, 135 Neb. 728, 283 N.W. 839 (1939). Assignment in motion of errors of law occurring at trial and duly excepted to is sufficient to review ruling on demurrer. Riverside Coal Co. v. Holmes, 36 Neb. 858, 55 N.W. 255 (1893). Assignment of errors of law occurring at trial is sufficient to entitle party to review rulings on admission or rejection of testimony. Labaree v. Klosterman, 33 Neb. 150, 49 N.W. 1102 (1891). 3. Miscellaneous A motion for reconsideration does not toll the time for appeal and is considered nothing more than an invitation to the court to consider exercising its inherent power to vacate or modify its own judgment. Bechtold v. Gomez, 254 Neb. 282, 576 N.W.2d 185 (1998). Erroneous failure to submit pleaded issues supported by evidence may be availed of by assignment of error in language of the statute. Fries v. Goldsby, 163 Neb. 424, 80 N.W.2d 171 (1956). Setting out grounds for new trial in language of statute is sufficient for purposes of motion, but is insufficient as assignments of error upon appeal. Labs v. Farmers State Bank of Millard, 135 Neb. 130, 280 N.W. 452 (1938). Record of trial itself must show how question was presented to and ruled upon by court; cannot be shown by affidavit filed with motion for new trial. Palmer v. Parmele, 104 Neb. 30, 175 N.W. 649 (1919). Appeal to Supreme Court does not prevent district court from granting new trial. Smith v. Goodman, 100 Neb. 284, 159 N.W. 418 (1916). Alleged errors of trial court in an action at law, not referred to in motion for new trial, will not be considered. Pennington County Bank v. Bauman, 81 Neb. 782, 116 N.W. 669 (1908). Affidavits must be filed and preserved in bill of exceptions. Omaha Fire Ins. Co. v. Dierks, 43 Neb. 473, 61 N.W. 740 (1895).