Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-28

assigned as error, a refusal to set
aside a judgment, based on the YER
dict, and to grant new trial must
show, as before the amendment Of the
statute, to be an abuse of judicial dis
cretion which is subject to review on
appeal
In the case at bar, however, there
is nothing in the bill of exceptions
tending in any manner to show an
abuse of discretion, so that If an cir
regularity in the proceedings of the
court by which the defendant was
prevented from having a fair trial"
occurred, as asserted in the motion
to set aside the judgment, no proof
thereof has been properly brought up
! for examination. II the evidence Civ
en- at the trial was insufficient to JUS
tify the verdict so that the judgment
is against law the court was not
properly advised thereof by motion
for judgment of nonsuit or a request
for a directed verdict for defendant,
whereby all the testimony could
have been certified and sent up for
consideration.
In the trial of an action a party
has an opportunity to object to any
thing occurring within his knowledge
that may be regarded as prejudicial
and he can, upon calling the courts
attention to the matter, secure a rul-
ing which, if adverse and excepted to,
may be reviewed on appeal A party
having a suitable occasion to object
and except to anything considered
detrimental to his interests must take
advantage of the harmful act or con-
duct when it occurs, If he has know
ledge thereof, for he will not be per-
mitted to speculate on a favorable
verdict and if disappointed then seek
to question the proceedings by a mo-
ton for a new trial. The procedure
sanctioned by the amendment of the
statute under consideration permits
defeated party by interposing a mo-
ton to set aside a judgment to pres
ent for re-examination at a time
when more deliberation can be exer-
cised than is afforded during the ex-
citement of a trial, all alleged errors
to which exceptions have been duly
taken, in order that the court by
granting a new trial may correct any
mistakes that may have been made
and thus avoid the necessity of TAX
ing an appeal. A motion for new
trial when interposed by a defeated
party, may also make renewable an
exercise of the courts discretion re-
specting any matter that has arisen
from the time the impaneling of the
jury begins until verdict is re-
turned of which such party had no
knowledge, but in that case evidence
of the prejudicial act or conduct
must be submitted by affidavits or in
some other substantial form, so that
a memorandum thereof may be in
corporated in the bill of exceptions.
1t would seem that the motion of
defeated party for new trial, so far
as any action by the court thereon
can constitute a final judgment and
form the basis of an appeal, is limit
ed to the question of discretion for
since an appeal from the Judgment
will bring up all errors duly assigned,
except as to matters occurring with
out the knowledge of such party uTl-
til after the verdict is returned.
motion for a new trial is unnecessary
in Gll other instances for II errors
occurred at the trial and were eX-
cepted to by defendant, as stated in
the motion herein, such matters can
be considered on the appeal from the
judgment. So, too, the sufficiency Of
a complaint can be challenged for
the first time in this court and may
be examined on an appeal from the
judgment.
Defendants counsel submitted FOR
settlement and allowance what pIr-
ported to be a bill of exceptions
wherein the question of plaintiffs